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 IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION      

WRIT PETITION (CIVIL) NO 494  OF 2012  

JUSTICE K S PUTTASWAMY (RETD.),   AND ANR.                          ..Petitioners     

VERSUS  

UNION OF INDIA AND ORS.                                    ..Respondents   

WITH   

T.C. (CIVIL)  NO 151 OF 2013  

T.C. (CIVIL) NO 152 OF 2013  

W.P.(CIVIL) NO 833 OF 2013  

W.P.(CIVIL) NO 829 OF 2013  

W.P.(CIVIL) NO 932 OF 2013  

CONMT. PET. (CIVIL) NO 144 OF 2014 IN W.P.(C) NO. 494/2012  

T.P.(CIVIL) NO 313 OF 2014  

T.P.(CIVIL) NO 312 OF 2014  

S.L.P(CRL.) NO.2524/2014  

W.P.(CIVIL) NO.37/2015  

W.P.(CIVIL) NO.220/2015  

REPORTABLE

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CONMT. PET. (C)NO.674/2015 IN W.P.(C) NO.829/2013  

T.P.(CIVIL)NO.921/2015  

CONMT.PET.(C)NO.470/2015 IN W.P.(C) NO.494/2012  

CONMT.PET.(C)NO.444/2016 IN W.P.(C) NO.494/2012  

CONMT.PET.(C)NO.608/2016 IN W.P.(C) NO.494/2012  

W.P.(CIVIL) NO.797/2016  

CONMT.PET.(C)NO.844/2017 IN W.P.(C) NO.494/2012  

W.P. (C) NO. 342/ 2017   

AND WITH W.P.(C) NO.000372/2017  

J U D G M E N T  

Dr D Y CHANDRACHUD, J  

This judgment has been divided into sections to facilitate analysis. They are :    A The reference   

B     Decision in M P Sharma   

C Decision in Kharak Singh      

D  Gopalan doctrine: fundamental rights as isolated silos    

E Cooper and Maneka: Interrelationship between rights  

F Origins of privacy   

G Natural and inalienable rights  

H Evolution of the privacy doctrine in India    

I The Indian Constitution    

• Preamble   

•  Jurisprudence on dignity

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•  Fundamental Rights cases  

•  No waiver of Fundamental Rights  

• Privacy as intrinsic to freedom and liberty   

• Discordant Notes    :        (i) ADM Jabalpur   

               (ii) Suresh Koushal    J India’s commitments under International law  

K Comparative law on privacy     

(i) UK decisions  

(ii)  US Supreme Court decisions   

(iii)  Constitutional right to privacy in South Africa  

(iv)  Constitutional right to privacy in Canada  

(v)  Privacy under the European Convention on Human Rights and  

the European Charter  

(vi)  Decisions of the Inter-American Court of Human Rights  

L Criticisms of the privacy doctrine  

a Thomson’s Reductionism    

b Posner’s Economic critique   

c  Bork’s critique    

d Feminist critique    

M Constituent Assembly and privacy: limits of originalist interpretation  

N Is the statutory protection to privacy reason to deny a constitutional right?  

O Not an elitist construct   

P Not just a common law right  

Q Substantive Due Process   

R Essential nature of privacy  

S Informational privacy   

T Conclusions  

PART A   

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A The reference   

 1 Nine judges of this Court assembled to determine whether privacy is a  

constitutionally protected value. The issue reaches out to the foundation of a  

constitutional culture based on the protection of human rights and enables this Court  

to revisit the basic principles on which our Constitution has been founded and their  

consequences for a way of life it seeks to protect. This case presents challenges for  

constitutional interpretation. If privacy is to be construed as a protected constitutional  

value, it would redefine in significant ways our concepts of liberty and the entitlements  

that flow out of its protection.   

2 Privacy, in its simplest sense, allows each human being to be left alone in a  

core which is inviolable. Yet the autonomy of the individual is conditioned by her  

relationships with the rest of society.  Those relationships may and do often pose  

questions to autonomy and free choice. The overarching presence of state and non-

state entities regulates aspects of social existence which bear upon the freedom of  

the individual. The preservation of constitutional liberty is, so to speak, work in  

progress. Challenges have to be addressed to existing problems. Equally, new  

challenges have to be dealt with in terms of a constitutional understanding of where  

liberty places an individual in the context of a social order. The emergence of new  

challenges is exemplified by this case, where the debate on privacy is being analysed  

in the context of a global information based society. In an age where information  

technology governs virtually every aspect of our lives, the task before the Court is to

PART A   

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impart constitutional meaning to individual liberty in an interconnected world. While  

we revisit the question whether our constitution protects privacy as an elemental  

principle, the Court has to be sensitive to the needs of and the opportunities and  

dangers posed to liberty in a digital world.   

3 A Bench of three judges of this Court, while considering the constitutional  

challenge to the Aadhaar card scheme of the Union government noted in its order  

dated 11 August 2015 that the norms for and compilation of demographic biometric  

data by government was questioned on the ground that it violates the right to privacy.   

The Attorney General for India urged that the existence of a fundamental right of  

privacy is in doubt in view of two decisions : the first – M P Sharma v Satish Chandra,  

District Magistrate, Delhi1 (“M P Sharma”) was rendered by a Bench of eight   

judges and the second, in Kharak Singh v State of Uttar Pradesh2 (“Kharak  

Singh”) was rendered by a Bench of six judges.  Each of these decisions, in the  

submission of the Attorney General, contained observations that the Indian  

Constitution does not specifically protect the right to privacy.  On the other hand, the  

submission of the petitioners was that M P Sharma and Kharak Singh were founded  

on principles expounded in A K Gopalan v State of Madras3 (“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  

                                                           1 (1954) SCR 1077   2 (1964) 1 SCR 332  3 AIR 1950 SC 27

PART A   

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Bench in Rustom Cavasji Cooper v Union of India4 (“Cooper”). Hence the  

petitioners submitted that the basis of the two earlier decisions is not valid. Moreover,  

it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union  

of India5 (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh  

was specifically approved of and the decision of the majority was overruled.    

4 While addressing these challenges, the Bench of three judges of this Court took  

note of several decisions of this Court in which the right to privacy has been held to  

be a constitutionally protected fundamental right.  Those decisions include : Gobind  

v State of Madhya Pradesh6 (“Gobind”), R Rajagopal v State of Tamil Nadu7  

(“Rajagopal”) and People’s Union for Civil Liberties v Union of India8 (“PUCL”).  

These subsequent decisions which affirmed the existence of a constitutionally  

protected right of privacy, were rendered by Benches of a strength smaller than those  

in M P Sharma and Kharak Singh.  Faced with this predicament and having due  

regard to the far-reaching questions of importance involving interpretation of the  

Constitution, it was felt that institutional integrity and judicial discipline would require  

a reference to a larger Bench.  Hence the Bench of three learned judges observed in  

its order dated 11 August 2015:   

“12. We are of the opinion that the cases on hand raise far reaching  

questions of importance involving interpretation of the Constitution.  

                                                           4 (1970) 1 SCC 248  5 (1978) 1 SCC 248  6 (1975) 2 SCC 148  7 (1994) 6 SCC 632  8 (1997) 1 SCC 301

PART A   

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What is at stake is the amplitude of the fundamental rights including  

that precious and inalienable right under Article 21. If the  

observations made in M.P. Sharma (supra) and Kharak Singh  

(supra) are to be read literally and accepted as the law of this  

country, the fundamental rights guaranteed under the Constitution  

of India and more particularly right to liberty under Article 21 would  

be denuded of vigour and vitality. At the same time, we are also of  

the opinion that the institutional integrity and judicial discipline  

require that pronouncement made by larger Benches of this Court  

cannot be ignored by the smaller Benches without appropriately  

explaining the reasons for not following the pronouncements made  

by such larger Benches. With due respect to all the learned Judges  

who rendered the subsequent judgments - where right to privacy is  

asserted or referred to their Lordships concern for the liberty of  

human beings, we are of the humble opinion that there appears to  

be certain amount of apparent unresolved contradiction in the law  

declared by this Court.   

13. Therefore, in our opinion to give a quietus to the kind of  

controversy raised in this batch of cases once for all, it is better that  

the ratio decidendi of M.P. Sharma (supra) and Kharak Singh  

(supra) is scrutinized and the jurisprudential correctness of the  

subsequent decisions of this Court where the right to privacy is  

either asserted or referred be examined and authoritatively decided  

by a Bench of appropriate strength.”  

5 On 18 July 2017, a Constitution Bench presided over by the learned Chief  

Justice considered it appropriate that the issue be resolved by a Bench of nine judges.   

The order of the Constitution Bench reads thus:  

“During the course of the hearing today, it seems that it has become  

essential for us to determine whether there is any fundamental right  

of privacy under the Indian Constitution. The determination of this  

question would essentially entail whether the decision recorded by  

this Court in M.P. Sharma and Ors. vs. Satish Chandra, District  

Magistrate, Delhi and Ors. - 1950 SCR 1077 by an eight-Judge  

Constitution Bench, and also, in Kharak Singh  vs. The State of  

U.P. and Ors. - 1962 (1) SCR 332 by a six-Judge Constitution  

Bench, that there is no such fundamental right, is the correct  

expression of the constitutional position.  

PART A   

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Before dealing with the matter any further, we are of the view that  

the issue noticed hereinabove deserves to be placed before the  

nine-Judge Constitution Bench. List these matters before the Nine-

Judge Constitution Bench on 19.07.2017.”  

6 During the course of hearing, we have been ably assisted on behalf of the  

petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr Arvind Datar, Mr Shyam  

Divan, Mr Anand Grover, Ms Meenakshi Arora, Mr Sajan Poovayya and Mr Jayant  

Bhushan, learned senior counsel.  Mr J S Attri, learned senior counsel supported them  

on behalf of the State of Himachal Pradesh.  On behalf of the Union of India, the Court  

has had the benefit of the erudite submissions of Mr K K Venugopal, Attorney General  

for India. He has been ably supported by Mr Tushar Mehta, Additional Solicitor  

General, Mr Rakesh Dwivedi, senior counsel for the State of Gujarat, Mr Aryama  

Sundaram for the State of Maharashtra, Mr Gopal Sankaranarayanan and  Dr Arghya  

Sengupta respectively. While some state governments have supported the stand of  

the Union government, others have supported the petitioners.   

7 The correctness of the decisions in M P Sharma and Kharak Singh, is to be  

evaluated during the course of the reference. Besides, the jurisprudential correctness  

of subsequent decisions holding the right to privacy to be a constitutionally protected  

right is to be determined.  The basic question whether privacy is a right protected  

under our Constitution requires an understanding of what privacy means.  For it is  

when we understand what interests or entitlements privacy safeguards, that we can  

determine whether the Constitution protects privacy. The contents of privacy need to  

PART B   

9  

be analysed, not by providing an exhaustive enunciation or catalogue of what it  

includes but by indicating its broad contours.  The Court has been addressed on  

various aspects of privacy including : (i) Whether there is a constitutionally protected  

right to privacy; (ii) If there is a constitutionally protected right, whether this has the  

character of an independent fundamental right or whether it arises from within the  

existing guarantees of protected rights such as life and personal liberty; (iii) the  

doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the  

nature of the regulatory power of the state.  

B       Decision in M P Sharma       8 An investigation was ordered by the Union government under the Companies  

Act into the affairs of a company which was in liquidation on the ground that it had  

made an organized attempt to embezzle its funds and to conceal the true state of its  

affairs from the share-holders and on the allegation that the company had indulged in  

fraudulent transactions and falsified its records.  Offences were registered and search  

warrants were issued during the course of which, records were seized. The challenge  

was that the searches violated the fundamental rights of the petitioners under Article  

19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected.  The  

question which this Court addressed was whether there was a contravention of Article  

20(3). Article 20(3) mandates that no person accused of an offence shall be compelled  

to be a witness against himself. Reliance was  placed on   a   judgment9 of  the   US  

                                                           9 Boyd v. United States, 116 US 616 (1886)  

PART B  

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Supreme Court holding that obtaining incriminating evidence by an illegal search and  

seizure violates the Fourth and Fifth Amendments of the American Constitution. While  

tracing the history of Indian legislation, this Court observed that provisions for search  

were contained in successive enactments of the Criminal Procedure Code. Justice  

Jagannadhadas, speaking for the Bench, held that a search or seizure does not  

infringe the constitutional right guaranteed by Article 20(3) of the Constitution:  

 “…there is no basis in the Indian law for the assumption that a search  

or seizure of a thing or document is in itself to be treated as compelled  

production of the same. Indeed a little consideration will show that the  

two are essentially different matters for the purpose relevant to the  

present discussion. A notice to produce is addressed to the party  

concerned and his production in compliance therewith constitutes a  

testimonial act by him within the meaning of Article 20(3) as above  

explained. But a search warrant is addressed to an officer of the  

Government, generally a police officer. Neither the search nor the  

seizure are acts of the occupier of the searched premises. They are  

acts of another to which he is obliged to submit and are, therefore, not  

his testimonial acts in any sense.”10  

9 Having held that the guarantee against self-incrimination is not offended by a  

search and seizure, the Court observed that :  

 “A power of search and seizure is in any system of jurisprudence  

an overriding power of the State for the protection of social security  

and that power is necessarily regulated by law. When the  

Constitution makers have thought fit not to subject such  

regulation to constitutional limitations by recognition of a  

fundamental right to privacy, analogous to the Fourth  

Amendment, we have no justification to import it, into a totally  

different fundamental right, by some process of strained  

construction. Nor is it legitimate to assume that the constitutional  

                                                           10 MP Sharma (Supra note 1), at page 1096

PART C  

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protection under Article 20(3) would be defeated by the statutory  

provisions for searches.”11                           (emphasis supplied)  

10 These observations – to be more precise in one sentence - indicating that the  

Constitution makers did not subject the regulation by law of the power of search and  

seizure to a fundamental right of privacy, similar to the Fourth amendment of the US  

Constitution, have been pressed in aid to question the existence of a protected right  

to privacy under our Constitution.   

C Decision in Kharak Singh          11 After being challaned in a case of dacoity in 1941, Kharak Singh was released  

for want of evidence.  But the police compiled a “history sheet” against him. ‘History  

sheets’ were defined in Regulation 228 of Chapter XX of the U P Police Regulations  

as “the personal records of criminals under surveillance”.  Kharak Singh, who was  

subjected to regular surveillance, including midnight knocks, moved this Court for a  

declaration that his fundamental rights were infringed.  Among the measures of  

surveillance contemplated by Regulation 236 were the following:  

“(a) Secret picketing of the house or approaches to the houses of  

suspects;  

(b) domiciliary visits at night;  

(c) thorough periodical inquiries by officers not below the rank of  

sub-inspector into repute, habits, associations, income, expenses  

and occupation;  

(d) the reporting by constables and chaukidars of movements and  

absences from home;  

                                                           11 Ibid, at page 1096-97

PART C  

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(c) the verification of movements and absences by means of inquiry  

slips;  

(f) the collection and record on a history-sheet of all information  

bearing on conduct.”    

12 This Court held that the freedom to move freely throughout the territory of India,  

guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of  

the petitioner since “his locomotion is not impeded or prejudiced in any manner”.  

13  When the decision in Kharak Singh was handed down, the principles  

governing the inter-relationship between the rights protected by Article 19 and the  

right to life and personal liberty under Article 21 were governed by the judgment in  

Gopalan. Gopalan considered each of the articles in the Chapter on fundamental  

rights as embodying distinct (as opposed to over-lapping) freedoms. Hence in Kharak  

Singh, the Court observed :  

“In view of the very limited nature of the question before us it is  

unnecessary to pause to consider either the precise relationship  

between the “liberties” in Article 19(1)(a) & (d) on the one hand and  

that in Article 21 on the other, or the content and significance of the  

words “procedure established by law” in the latter Article, both of  

which were the subject of elaborate consideration by this Court  

in A.K. Gopalan v. State of Madras.”12  

14 The decision in Kharak Singh held that clause (b) of Regulation 236 which  

provided for domiciliary visits at night was violative of Article 21. The Court observed:    

“Is then the word “personal liberty” to be construed as excluding  

from its purview an invasion on the part of the police of the sanctity  

                                                           12 Kharak Singh (Supra note 2), at page 345

PART C  

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of a man's home and an intrusion into his personal security and his  

right to sleep which is the normal comfort and a dire necessity for  

human existence even as an animal? It might not be inappropriate  

to refer here to the words of the preamble to the Constitution that it  

is designed to “assure the dignity of the individual” and therefore of  

those cherished human values as the means of ensuring his full  

development and evolution. We are referring to these objectives of  

the framers merely to draw attention to the concepts underlying the  

constitution which would point to such vital words as “personal  

liberty” having to be construed in a reasonable manner and to be  

attributed that sense which would promote and achieve those  

objectives and by no means to stretch the meaning of the phrase to  

square with any pre-conceived notions or doctrinaire constitutional  

theories.”13   

15 In taking this view, Justice Rajagopala Ayyangar, speaking for a majority of five  

judges, relied upon the judgment of Justice Frankfurter, speaking for the US Supreme  

Court in Wolf v Colorado14, which held :  

“The security of one's privacy against arbitrary intrusion by the  

police … is basic to a free society…  

We have no hesitation in saying that were a State affirmatively to  

sanction such police incursion into privacy it would run counter to  

the guarantee of the Fourteenth Amendment.”15 (emphasis supplied)      

While the Court observed that the Indian Constitution does not contain a guarantee  

similar to the Fourth Amendment of the US Constitution, it proceeded to hold that :  

“Nevertheless, these extracts would show that an unauthorised  

intrusion into a person's home and the disturbance caused to  

him thereby, is as it were the violation of a common law right of  

a man an ultimate essential of ordered liberty, if not of the very  

                                                           13 Ibid, at pages 347-348  14 338 US 25 (1949)  15 Cited in Kharak Singh (Supra note 2), at page 348

PART C  

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concept of civilisation. An English Common Law maxim asserts that  

“every man's house is his castle” and in Semayne case [5 Coke  

91 : 1 Sm LC (13th Edn) 104 at p. 105] where this was applied, it  

was stated that “the house of everyone is to him as his castle  

and fortress as well as for his defence against injury and violence  

as for his repose”. We are not unmindful of the fact that Semayne  

case [(1604) 5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] was  

concerned with the law relating to executions in England, but the  

passage extracted has a validity quite apart from the context of the  

particular decision. It embodies an abiding principle which  

transcends mere protection of property rights and expounds a  

concept of “personal liberty” which does not rest on any element  

of feudalism or on any theory of freedom which has ceased to be of  

value.”16            (emphasis supplied)            

16 Kharak Singh regards the sanctity of the home and the protection against  

unauthorized intrusion an integral element of “ordered liberty”. This is comprised in  

‘personal liberty’ guaranteed by Article 21. The decision invalidated domiciliary visits  

at night authorised by Regulation 236 (b), finding them to be an unauthorized intrusion  

into the home of a person and a violation of the fundamental right to personal liberty.   

However, while considering the validity of clauses (c),(d) and (e) which provided for  

periodical enquiries, reporting by law enforcement personnel and verification of  

movements, this Court held as follows :  

“…the freedom guaranteed by Article 19(1)(d) is not infringed by a  

watch being kept over the movements of the suspect. Nor do we  

consider that Article 21 has any relevance in the context as was  

sought to be suggested by learned Counsel for the petitioner. As  

already pointed out, the right of privacy is not a guaranteed right  

under our Constitution and therefore the attempt to ascertain  

the movements of an individual which is merely a manner in  

                                                           16 Ibid, at page 349

PART C  

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which privacy is invaded is not an infringement of a  

fundamental right guaranteed by Part III.”17  (emphasis supplied)  

In the context of clauses (c), (d) and (e), the above extract indicates the view of the  

majority that the right of privacy is not guaranteed under the Constitution.  

17 Justice Subba Rao dissented. Justice Subba Rao held that the rights conferred  

by Part III have overlapping areas.  Where a law is challenged as infringing the right  

to freedom of movement under Article 19(1)(d) and the liberty of the individual under  

Article 21, it must satisfy the tests laid down in Article 19(2) as well as the requirements  

of Article 21. Justice Subba Rao held that :  

  “No doubt the expression “personal liberty” is a comprehensive one  

and the right to move freely is an attribute of personal liberty. It is  

said that the freedom to move freely is carved out of personal liberty  

and, therefore, the expression “personal liberty” in Article 21  

excludes that attribute. In our view, this is not a correct approach.  

Both are independent fundamental rights, though there is  

overlapping. There is no question of one being carved out of  

another. The fundamental right of life and personal liberty have  

many attributes and some of them are found in Article 19. If a  

person's fundamental right under Article 21 is infringed, the State  

can rely upon a law to sustain the action; but that cannot be a  

complete answer unless the said law satisfies the test laid down in  

Article 19(2) so far as the attributes covered by Article 19(1) are  

concerned. In other words, the State must satisfy that both the  

fundamental rights are not infringed by showing that there is a law  

and that it does amount to a reasonable restriction within the  

meaning of Article 19(2) of the Constitution. But in this case no such  

defence is available, as admittedly there is no such law. So the  

petitioner can legitimately plead that his fundamental rights both  

under Article 19(1)(d) and Article 21 are infringed by the State.”18  

                                                           17 Ibid, at page 351  18 Ibid, at pages 356-357

PART C  

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18 Justice Subba Rao held that Article 21 embodies the right of the individual to  

be free from restrictions or encroachments.  In this view, though the Constitution does  

not expressly declare the right to privacy as a fundamental right, such a right is  

essential to personal liberty. The dissenting opinion places the matter of principle as  

follows:  

 “In an uncivilized society where there are no inhibitions, only  

physical restraints may detract from personal liberty, but as  

civilization advances the psychological restraints are more effective  

than physical ones. The scientific methods used to condition a  

man's mind are in a real sense physical restraints, for they  

engender physical fear channelling one's actions through  

anticipated and expected grooves. So also the creation of  

conditions which necessarily engender inhibitions and fear  

complexes can be described as physical restraints. Further, the  

right to personal liberty takes in not only a right to be free from  

restrictions placed on his movements, but also free from  

encroachments on his private life. It is true our Constitution does  

not expressly declare a right to privacy as a fundamental right,  

but the said right is an essential ingredient of personal liberty.  

Every democratic country sanctifies domestic life; it is expected to  

give him rest, physical happiness, peace of mind and security. In  

the last resort, a person's house, where he lives with his family, is  

his “castle”; it is his rampart against encroachment on his personal  

liberty. The pregnant words of that famous Judge, Frankfurter  

J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the  

importance of the security of one's privacy against arbitrary  

intrusion by the police, could have no less application to an  

Indian home as to an American one. If physical restraints on a  

person's movements affect his personal liberty, physical  

encroachments on his private life would affect it in a larger degree.  

Indeed, nothing is more deleterious to a man's physical happiness  

and health than a calculated interference with his privacy. We  

would, therefore, define the right of personal liberty in Article 21 as  

a right of an individual to be free from restrictions or encroachments  

on his person, whether those restrictions or encroachments are  

directly imposed or indirectly brought about by calculated  

measures. If so understood, all the   acts   of   surveillance   under

PART D  

17    

Regulation 236 infringe the fundamental right of the petitioner under  

Article 21 of the Constitution.”19              (emphasis supplied)   

Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba  

Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v  

Colorado which specifically advert to privacy. The majority, while relying upon them  

to invalidate domiciliary visits at night, regards the sanctity of the home as part of  

ordered liberty. In the context of other provisions of the regulation, the majority  

declines to recognise a right of privacy as a constitutional protection. Justice Subba  

Rao recognised a constitutional by protected right to privacy, considering it as an  

ingredient of personal liberty.    

D  Gopalan doctrine : fundamental rights as isolated silos    

19 When eight judges of this Court rendered the decision in M P Sharma in 1954  

and later, six judges decided the controversy in Kharak Singh in 1962, the ascendant  

and, even well established, doctrine governing the fundamental rights contained in  

Part III was founded on the Gopalan principle. In Gopalan, Chief Justice Kania,  

speaking for a majority of five of the Bench of six judges, construed the relationship  

between Articles 19 and 21 to be one of mutual exclusion.  In this line of enquiry, what  

was comprehended by Article 19 was excluded from Article 21.  The seven freedoms  

of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21.   

                                                           19 Ibid, at pages 358-359

PART D  

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The consequence was that a law which curtailed one of the freedoms guaranteed by  

Article 19 would be required to answer the tests of reasonableness prescribed by  

clauses 2 to 6 of Article 19 and those alone.  In the Gopalan perspective, free speech  

and expression was guaranteed by Article 19(1)(a) and was hence excluded from  

personal liberty under Article 21.  Article 21 was but a residue.  Chief Justice Kania  

held :   

 “Reading Article 19 in that way it appears to me that the concept of  

the right to move freely throughout the territory of India is an entirely  

different concept from the right to “personal liberty” contemplated  

by Article 21. “Personal liberty” covers many more rights in one  

sense and has a restricted meaning in another sense. For instance,  

while the right to move or reside may be covered by the expression,  

“personal liberty” the right to freedom of speech (mentioned in  

Article 19(1)(a)) or the right to acquire, hold or dispose of property  

(mentioned in 19(1)(f)) cannot be considered a part of  

the personal liberty of a citizen. They form part of the liberty of a  

citizen but the limitation imposed by the word “personal” leads me  

to believe that those rights are not covered by the expression  

personal liberty. So read there is no conflict between Articles 19 and  

21. The contents and subject-matters of Articles 19 and 21 are thus  

not the same and they proceed to deal with the rights covered by  

their respective words from totally different angles. As already  

mentioned in respect of each of the rights specified in sub-clauses  

of Article 19(1) specific limitations in respect of each is provided,  

while the expression “personal liberty” in Article 21 is generally  

controlled by the general expression “procedure established by  

law”.”20  

‘Procedure established by law’ under Article 21 was, in this view, not capable of being  

expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The dissent  

                                                           20 Gopalan (Supra note 3), at pages 36-37

PART D  

19    

adopted the view that the fundamental rights are not isolated and separate but protect  

a common thread of liberty and freedom:  

 “To my mind, the scheme of the Chapter dealing with the  

fundamental rights does not contemplate what is attributed to it,  

namely, that each article is a code by itself and is independent of  

the others. In my opinion, it cannot be said that Articles 19,20, 21  

and 22 do not to some extent overlap each other.  The case of a  

person who is convicted of an offence will come under Articles 20  

and 21 and also under Article 22 so far as his arrest and detention  

in custody before trial are concerned.  Preventive detention, which  

is dealt with an Article 22, also amounts to deprivation of personal  

liberty which is referred to in Article 21, and is a violation of the right  

of freedom of movement dealt with in Article 19(1)(d)…  

It seems clear that the addition of the word “personal” before  

“liberty” in Article 21 cannot change the meaning of the words used  

in Article 19, nor can it put a matter which is inseparably bound up  

with personal liberty beyond its place...”21  

 20 In Satwant Singh Sawhney v D Ramarathnam22 (“Satwant Singh  

Sawhney”), Justice Hidayatullah, speaking for himself and Justice R S Bachawat, in  

the dissenting view noticed the clear lines of distinction between the dissent of Justice  

Subba Rao and the view of the majority in Kharak Singh. The observations of Justice  

Hidayatullah indicate that if the right of locomotion is embodied by Article 21 of which  

one aspect is covered by Article 19(1)(d), that would in fact advance the minority view  

in Kharak Singh:   

“Subba Rao J. (as he then was) read personal liberty as the  

antithesis of physical restraint or coercion and found that Articles  

19(1) and 21 overlapped and Article 19(1)(d) was not carved out of  

personal liberty in Article 21. According to him, personal liberty  

could be curtailed by law, but that law must satisfy the test in Article  

                                                           21 Ibid, at pages 52-53  22 (1967) 3 SCR 525

PART E  

20    

19(2) in so far as the specific rights in Article 19(1)(3) are  

concerned. In other words, the State must satisfy that both the  

fundamental rights are not infringed by showing that there is a law  

and that it does not amount to an unreasonable restriction within  

the meaning of Article 19(2) of the Constitution. As in that case  

there was no law, fundamental rights, both under Article 19(1)(d)  

and Article 21 were held to be infringed. The learned Chief Justice  

has read into the decision of the Court a meaning which it does not  

intend to convey. He excludes from Article 21 the right to free  

motion and locomotion within the territories of India and puts the  

right to travel abroad in Article 21. He wants to see a law and if his  

earlier reasoning were to prevail, the law should stand the test of  

Article 19(2). But since clause (2) deals with matters in Article 19(1)  

already held excluded, it is obvious that it will not apply. The law  

which is made can only be tested on the ground of articles other  

than Article 19 such as Articles 14, 20 and 22 which alone bears  

upon this matter. In other words, the majority decision of the Court  

in this case has rejected Ayyangar J.'s view and accepted the view  

of the minority in Kharak Singh case…  

This view obviously clashes with the reading of Article 21 in Kharak  

Singh case, because there the right of motion and locomotion was  

held to be excluded from Article 21. In other words, the present  

decision advances the minority view in Kharak Singh case above  

the majority view stated in that case.”23  

E Cooper and Maneka : Interrelationship between rights  

21 The theory that the fundamental rights are water-tight compartments was  

discarded in the judgment of eleven judges of this Court in Cooper.  Gopalan had  

adopted the view that a law of preventive detention would be tested for its validity only  

with reference to Article 22, which was a complete code relating to the subject.   

Legislation on preventive detention did not, in this view, have to meet the touchstone  

of Article 19(1)(d).  The dissenting view of Justice Fazl Ali in Gopalan was noticed by  

                                                           23 Ibid, at page 554

PART E   

21    

Justice J C Shah, speaking for this Court, in Cooper. The consequence of the  

Gopalan doctrine was that the protection afforded by a guarantee of personal freedom  

would be decided by the object of the State action in relation to the right of the  

individual and not upon its effect upon the guarantee.  Disagreeing with this view, the  

Court in Cooper held thus :  

 ”…it is necessary to bear in mind the enunciation of the guarantee  

of fundamental rights which has taken different forms. In some  

cases it is an express declaration of a guaranteed right: Articles  

29(1), 30(1), 26, 25 and 32; in others to ensure protection of  

individual rights they take specific forms of restrictions on State  

action — legislative or executive — Articles 14, 15, 16, 20, 21,  

22(1), 27 and 28; in some others, it takes the form of a positive  

declaration and simultaneously enunciates the restriction thereon:  

Articles 19(1) and 19(2) to (6); in some cases, it arises as an  

implication from the delimitation of the authority of the State, e.g.  

Articles 31(1) and 31(2); in still others, it takes the form of a general  

prohibition against the State as well as others: Articles 17, 23 and  

24. The enunciation of rights either express or by implication  

does not follow a uniform pattern. But one thread runs through  

them: they seek to protect the rights of the individual or groups  

of individuals against infringement of those rights within  

specific limits. Part III of the Constitution weaves a pattern of  

guarantees on the    texture    of    basic    human rights. The  

guarantees delimit the protection of those rights in their  

allotted fields: they do not attempt to enunciate distinct  

rights.”24    (emphasis supplied)  

22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven-

judge Bench decision in Maneka.  Justice P N Bhagwati who delivered the leading  

opinion of three Judges held that the judgment in Cooper affirms the dissenting  

                                                           24 Cooper (Supra note 4), at page 289 (para 52)

PART E   

22    

opinion of Justice Subba Rao (in Kharak Singh) as expressing the valid constitutional  

position.  Hence in Maneka, the Court held that:   

          “It was in Kharak Singh v. State of U.P.[AIR 1963 SC 1295 : (1964)  

1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper  

scope and meaning of the expression “personal liberty” came up  

pointedly for consideration for the first time before this Court. The  

majority of the Judges took the view “that “personal liberty” is used  

in the article as a compendious term to include within itself all the  

varieties of rights which go to make up the “personal liberties” of  

man other than those dealt with in the several clauses of Article  

19(1). In other words, while Article 19(1) deals with particular  

species or attributes of that freedom, ‘personal liberty’ in Article 21  

takes in and comprises the residue. The minority Judges, however,  

disagreed with this view taken by the majority and explained their  

position in the following words: “No doubt the expression ‘personal  

liberty’ is a comprehensive one and the right to move freely is an  

attribute of personal liberty. It is said that the freedom to move freely  

is carved out of personal liberty and, therefore, the expression  

‘personal liberty’ in Article 21 excludes that attribute. In our view,  

this is not a correct approach. Both are independent fundamental  

rights, though there is overlapping. There is no question of one  

being carved out of another. The fundamental right of life and  

personal liberty has many attributes and some of them are found in  

Article 19. If a person's fundamental right under Article 21 is  

infringed, the State can rely upon a law to sustain the action, but  

that cannot be a complete answer unless the said law satisfies the  

test laid down in Article 19(2) so far as the attributes covered by  

Article 19(1) are concerned.” There can be no doubt that in view  

of the decision of this Court in R.C. Cooper v. Union of  

India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view  

must be regarded as correct and the majority view must be  

held to have been overruled.”25                  (emphasis supplied)   

23 Following the decision in Maneka, the established constitutional doctrine is that  

the expression ‘personal liberty’ in Article 21 covers a variety of rights, some of which  

                                                           25 Maneka (Supra Note 5), at page 278 (para 5)

PART E   

23    

‘have been raised to the status of distinct fundamental rights’ and given additional  

protection under Article 19.  Consequently, in Satwant Singh Sawhney, the right to  

travel abroad was held to be subsumed within Article 21 as a consequence of which  

any deprivation of that right could be only by a ‘procedure established by law’. Prior  

to the enactment of the Passports Act, 1967, there was no law regulating the right to  

travel abroad as a result of which the order of the Passport Officer refusing a passport  

was held to be invalid. The decision in Maneka carried the constitutional principle of  

the over-lapping nature of fundamental rights to its logical conclusion.  

Reasonableness which is the foundation of the guarantee against arbitrary state  

action under Article 14 infuses Article 21. A law which provides for a deprivation of life  

or personal liberty under Article 21 must lay down not just any procedure but a  

procedure which is fair, just and reasonable.    

24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position  

on the relationship between Articles 19 and 21, based on the view of the majority in  

Gopalan.  This view stands abrogated particularly by the judgment in Cooper and the  

subsequent statement of doctrine in Maneka. The decision in Maneka, in fact,  

expressly recognized that it is the dissenting judgment of Justice Subba Rao in  

Kharak Singh which represents the exposition of the correct constitutional principle.   

The jurisprudential foundation which held the field sixty three years ago in M P  

Sharma and fifty five years ago in Kharak Singh has given way to what is now a  

settled position in constitutional law. Firstly, the fundamental rights emanate from  

basic notions of liberty and dignity and the enumeration of some facets of liberty as

PART E   

24    

distinctly protected rights under Article 19 does not denude Article 21 of its expansive  

ambit. Secondly, the validity of a law which infringes the fundamental rights has to be  

tested not with reference to the object of state action but on the basis of its effect on  

the guarantees of freedom.  Thirdly, the requirement of Article 14 that state action  

must not be arbitrary and must fulfil the requirement of reasonableness, imparts  

meaning to the constitutional guarantees in Part III.  

25 The doctrinal invalidation of the basic premise underlying the decisions in M P  

Sharma and Kharak Singh still leaves the issue of whether privacy is a right protected  

by Part III of the Constitution open for consideration. There are observations in both  

decisions that the Constitution does not contain a specific protection of the right to  

privacy. Presently, the matter can be looked at from the perspective of what actually  

was the controversy in the two cases. M P Sharma was a case where a law  

prescribing a search to obtain documents for investigating into offences was  

challenged as being contrary to the guarantee against self-incrimination in Article  

20(3). The Court repelled the argument that a search for documents compelled a  

person accused of an offence to be witness against himself. Unlike a notice to produce  

documents, which is addressed to a person and whose compliance would constitute  

a testimonial act, a search warrant and a seizure which follows are not testimonial  

acts of a person to whom the warrant is addressed, within the meaning of Article 20(3).  

The Court having held this, the controversy in M P Sharma would rest at that. The  

observations in M P Sharma to the effect that the constitution makers had not thought  

it fit to subject the regulatory power of search and seizure to constitutional limitations

PART E   

25    

by recognising a fundamental right of privacy (like the US Fourth amendment), and  

that there was no justification to impart it into a ‘totally different fundamental right’ are  

at the highest, stray observations.   

26 The decision in M P Sharma held that in the absence of a provision like the  

Fourth Amendment to the US Constitution, a right to privacy cannot be read into the  

Indian Constitution. The decision in M P Sharma did not decide whether a  

constitutional right to privacy is protected by other provisions contained in the  

fundamental rights including among them, the right to life and personal liberty under  

Article 21. Hence the decision cannot be construed to specifically exclude the  

protection of privacy under the framework of protected guarantees including those in  

Articles 19 or 21. The absence of an express constitutional guarantee of privacy still  

begs the question whether privacy is an element of liberty and, as an integral part of  

human dignity, is comprehended within the protection of life as well.    

27 The decision in Kharak Singh is noteworthy because while invalidating  

Regulation 236(b) of the Police Regulations which provided for nightly domiciliary  

visits, the majority construed this to be an unauthorized intrusion into a person’s home  

and a violation of ordered liberty. While arriving at this conclusion, the majority  

placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking  

for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the  

majority judgment specifically adverts to ‘privacy’ twice). Having relied on this doctrine

PART F   

26    

to invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the  

challenge to other clauses of Regulation 236 on the ground that the right of privacy is  

not guaranteed under the Constitution and hence Article 21 had no application.  This  

part of the judgment in Kharak Singh is inconsistent with the earlier part of the  

decision. The decision of the majority in Kharak Singh suffers from an internal  

inconsistency.    

F Origins of privacy     28 An evaluation of the origins of privacy is essential in order to understand  

whether (as the Union of India postulates), the concept is so amorphous as to defy  

description.  The submission of the government is that the Court cannot recognize a  

juristic concept which is so vague and uncertain that it fails to withstand constitutional  

scrutiny.  This makes it necessary to analyse the origins of privacy and to trace its  

evolution.   

29 The Greek philosopher Aristotle spoke of a division between the public sphere  

of political affairs (which he termed the polis) and the personal sphere of human life  

(termed oikos).  This dichotomy may provide an early recognition of “a confidential  

zone on behalf of the citizen”26. Aristotle’s distinction between the public and private  

realms can be regarded as providing a basis for restricting governmental authority to  

activities falling within the public realm.  On the other hand, activities in the private  

                                                           26 Michael C. James, “A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe”,  Connecticut Journal of International Law (Spring 2014), Vol. 29, Issue 2, at page 261

PART F   

27    

realm are more appropriately reserved for “private reflection, familial relations and  

self-determination”27.   

30 At a certain level, the evolution of the doctrine of privacy has followed the public  

– private distinction. William Blackstone in his Commentaries on the Laws of  

England (1765) spoke about this distinction while dividing wrongs into private wrongs  

and public wrongs. Private wrongs are an infringement merely of particular rights  

concerning individuals and are in the nature of civil injuries. Public wrongs constitute  

a breach of general and public rights affecting the whole community and according to  

him, are called crimes and misdemeanours.   

31 John Stuart Mill in his essay, ‘On Liberty’ (1859) gave expression to the need  

to preserve a zone within which the liberty of the citizen would be free from the  

authority of the state.  According to Mill :  

 “The only part of the conduct of any one, for which he is amenable  

to society, is that which concerns others.  In the part which merely  

concerns himself, his independence is, of right, absolute. Over  

himself, over his own body and mind, the individual is sovereign.”28  

While speaking of a “struggle between liberty and authority”29, Mill posited that the  

tyranny of the majority could be reined by the recognition of civil rights such as the  

individual right to privacy, free speech, assembly and expression.    

                                                           27 Ibid, at page 262  28 John Stuart Mill, On Liberty, Batoche Books (1859), at page 13  29 Ibid, at page 6

PART F   

28    

32 Austin in his Lectures on Jurisprudence (1869) spoke of the distinction  

between the public and the private realms : jus publicum and jus privatum.   

The distinction between the public and private realms has its limitations. If the reason  

for protecting privacy is the dignity of the individual, the rationale for its existence does  

not cease merely because the individual has to interact with others in the public arena.  

The extent to which an individual expects privacy in a public street may be different  

from that which she expects in the sanctity of the home. Yet if dignity is the underlying  

feature, the basis of recognising the right to privacy is not denuded in public spaces.  

The extent of permissible state regulation may, however, differ based on the legitimate  

concerns of governmental authority.   

33 James Madison, who was the architect of the American Constitution,  

contemplated the protection of the faculties of the citizen as an incident of the  

inalienable property rights of human beings.  In his words :  

 “In the former sense, a man’s land, or merchandize, or money is  

called his property. In the latter sense, a man has property in his  

opinions and the free communication of them…  

He has an equal property interest in the free use of his faculties and  

free choice of the objects on which to employ them. In a word, as a  

man is said to have a right to his property, he may be equally said  

to have a property in his rights.  Where an excess of power prevails,  

property of no sort is duly respected.  No man is safe in his opinions,  

his person, his faculties or his possessions…  

Conscience is the most sacred of all property; other property  

depending in part on positive law, the exercise of that, being a  

natural and inalienable right.  To guard a man’s house as his castle,

PART F   

29    

to pay public and enforce private debts with the most exact faith,  

can give no title to invade a man’s conscience which is more sacred  

than his castle, or to withhold from it that debt of protection, for  

which the public faith is pledged, by the very nature and original  

conditions of the social pact.”30   

 Madison traced the recognition of an inviolable zone to an inalienable right to property.  

Property is construed in the broadest sense to include tangibles and intangibles and  

ultimately to control over one’s conscience itself.   

34 In an article published on 15 December 1890 in the Harvard Law Review,  

Samuel D Warren and Louis Brandeis adverted to the evolution of the law to  

incorporate within it, the right to life as “a recognition of man’s spiritual nature, of his  

feelings and his intellect”31. As legal rights were broadened, the right to life had “come  

to mean the right to enjoy life – the right to be let alone”. Recognizing that “only a  

part of the pain, pleasure and profit of life lay in physical things” and that “thoughts,  

emotions, and sensations demanded legal recognition”, Warren and Brandeis  

revealed with a sense of perspicacity the impact of technology on the right to be let  

alone:  

 “Recent inventions and business methods call attention to the next  

step which must be taken for the protection of the person, and for  

securing to the individual what Judge Cooley calls the right “to be  

let alone”. Instantaneous photographs and newspaper enterprise  

have invaded the sacred precincts of private and domestic life; and  

numerous mechanical devices threaten to make good the  

prediction that “what is whispered in the closet shall be proclaimed  

                                                           30 James Madison, “Essay on Property”, in Gaillard Hunt ed., The Writings of James Madison (1906), Vol. 6, at  

pages 101-103.  31 Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1890), Vol.4, No. 5, at page 193

PART F   

30    

from the house-tops.” For years there has been a feeling that the  

law must afford some remedy for the unauthorized circulation of  

portraits of private persons…  

The intensity and complexity of life, attendant upon advancing  

civilization, have rendered necessary some retreat from the world,  

and man, under the refining influence of culture, has become more  

sensitive to publicity, so that solitude and privacy have become  

more essential to the individual; but modern enterprise and  

invention have, through invasions upon his privacy, subjected him  

to mental pain and distress, far greater than could be inflicted by  

mere bodily injury.”32  

In their seminal article, Warren and Brandeis observed that:  

 “The principle which protects personal writings and all other  

personal productions, not against theft and physical appropriation,  

but against publication in any form, is in reality not the principle of  

private property, but that of an inviolate personality.”33                                                                    

(emphasis supplied)  

The right “to be let alone” thus represented a manifestation of “an inviolate  

personality”, a core of freedom and liberty from which the human being had to be free  

from intrusion. The technology which provided a justification for the need to preserve  

the privacy of the individual was the development of photography. The right to be let  

alone was not so much an incident of property as a reflection of the inviolable nature  

of the human personality.  

35 The ringing observations of Warren and Brandeis on the impact of technology  

have continued relevance today in a globalized world dominated by the internet and  

                                                           32 Ibid, at pages 195-196  33 Ibid, at page 205

PART F   

31    

information technology. As societies have evolved, so have the connotations and  

ambit of privacy.   

36 Though many contemporary accounts attribute the modern conception of the  

‘right to privacy’ to the Warren and Brandeis article, historical material indicates that it  

was Thomas Cooley who adopted the phrase “the right to be let alone”, in his  

Treatise on the Law of Torts34. Discussing personal immunity, Cooley stated:   

“the right of one’s person may be said to be a right of complete  

immunity; the right to be alone.”35   

Roscoe Pound described the Warren and Brandeis article as having done “nothing  

less than add a chapter to our law”36. However, another writer on the subject states    

that:        

“This right to privacy was not new. Warren and Brandeis did not  

even coin the phrase, “right to privacy,” nor its common soubriquet,  

“the right to be let alone”.”37  

The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in  

its turn, a part of the fundamental right to life of the individual.   

                                                           34 Thomas Cooley, Treatise on the Law of Torts (1888), 2nd edition  35 Ibid, at page 29  36 Dorothy J Glancy, “The Invention of the Right to Privacy”, Arizona Law Review (1979) Vol. 21, No.1, at page 1.  

The article attributes the Roscoe Pound quotation to “Letter from Roscoe Pound to William Chilton (1916)” as  quoted in Alpheus Mason, Brandeis : A Free Man’s Life 70 (1956).  

37 Ibid, at pages 2-3.

PART F   

32    

37 The right to privacy was developed by Warren and Brandeis in the backdrop of  

the dense urbanization which occurred particularly in the East Coast of the United  

States. Between 1790 and 1890, the US population had risen from four million to sixty-

three million. The population of urban areas had grown over a hundred-fold since the  

end of the civil war. In 1890, over eight million people had immigrated to the US.  

Technological progress and rapid innovations had led to the private realm being  

placed under stress :  

“…technological progress during the post-Civil War decades had  

brought to Boston and the rest of the United States “countless, little-

noticed revolutions” in the form of a variety of inventions which  

made the personal lives and personalities of individuals  

increasingly accessible to large numbers of others, irrespective of  

acquaintance, social or economic class, or the customary  

constraints of propriety.  Bell invented the telephone in Boston; the  

first commercial telephone exchange opened there in 1877, while  

Warren and Brandeis were students at the Harvard Law School. By  

1890 there were also telegraphs, fairly inexpensive portable  

cameras, sound recording devices, and better and cheaper  

methods of making window glass. Warren and Brandeis recognized  

that these advances in technology, coupled with intensified  

newspaper enterprise, increased the vulnerability of individuals to  

having their actions, words, images, and personalities  

communicated without their consent beyond the protected circle of  

family and chosen friends.”38  

Coupled with this was the trend towards ‘newspaperization’39, the increasing presence  

of the print media in American society. Six months before the publication of the Warren  

and Brandeis’ article, E L Godkin, a newspaper man had published an article on the  

same subject in Scribner’s magazine in July 1890. Godkin, however, suggested no  

                                                           38 Ibid, at pages 7-8  39 Ibid, at page 8

PART F   

33    

realistic remedy for protecting privacy against intrusion, save and except “by the  

cudgel or the horsewhip”40. It was Warren and Brandeis who advocated the use of the  

common law to vindicate the right to privacy.41   

38 Criminal libel actions were resorted to in the US during a part of the nineteenth  

century but by 1890, they had virtually ceased to be “a viable protection for individual  

privacy”42. The Sedition Act of 1789 expired in 1801. Before truth came to be accepted  

as a defence in defamation actions, criminal libel prosecutions flourished in the State  

courts.43  Similarly, truth was not regarded as a valid defence to a civil libel action in  

much of the nineteenth century. By the time Warren and Brandeis wrote their article  

in 1890, publication of the truth was perhaps no longer actionable under the law of  

defamation. It was this breach or lacuna that they sought to fill up by speaking of the  

right to privacy which would protect the control of the individual over her personality.44  

The right to privacy evolved as a “leitmotif” representing “the long tradition of American  

individualism”.45   

39 Conscious as we are of the limitations with which comparative frameworks46 of  

law and history should be evaluated, the above account is of significance. It reflects  

                                                           40 Ibid, at page 9  41 Ibid, at page 10  42 Ibid, at page 12  43 Ibid, at page 14  44 Ibid, at Pages 15-16  45 Id at Pages 21-22  46 Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of privacy within  Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya ,“Locating Constructs of Privacy

PART G   

34    

the basic need of every individual to live with dignity. Urbanization and economic  

development lead to a replacement of traditional social structures. Urban ghettos  

replace the tranquillity of self-sufficient rural livelihoods. The need to protect the  

privacy of the being is no less when development and technological change  

continuously threaten to place the person into public gaze and portend to submerge  

the individual into a seamless web of inter-connected lives.  

G Natural and inalienable rights  

40 Privacy is a concomitant of the right of the individual to exercise control over  

his or her personality. It finds an origin in the notion that there are certain rights which  

are natural to or inherent in a human being. Natural rights are inalienable because  

they are inseparable from the human personality. The human element in life is  

impossible to conceive without the existence of natural rights. In 1690, John Locke  

had in his Second Treatise of Government observed that the lives, liberties and  

estates of individuals are as a matter of fundamental natural law, a private preserve.  

The idea of a private preserve was to create barriers from outside interference. In  

1765, William Blackstone in his Commentaries on the Laws of England spoke of  

a “natural liberty”. There were, in his view, absolute rights which were vested in the  

individual by the immutable laws of nature. These absolute rights were divided into  

                                                           within Classical Hindu Law”, The Centre for Internet and Society, available at https://cis-india.org/internet- governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda and Bhairav  Acharya, “Identifying Aspects of Privacy in Islamic Law”, The Centre for Internet and Society, available at  https://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law   

PART G   

35    

rights of personal security, personal liberty and property. The right of personal security  

involved a legal and uninterrupted enjoyment of life, limbs, body, health and reputation  

by an individual.   

 41 The notion that certain rights are inalienable was embodied in the American  

Declaration of Independence (1776) in the following terms:   

“We hold these truths to be self-evident, that all men are created  

equal, that they are endowed by their Creator with certain  

unalienable rights, that among these are life, liberty and the  

pursuit of happiness”.                               (emphasis supplied)

The term inalienable rights was incorporated in the Declaration of the Rights of Man  

and of the Citizen (1789) adopted by the French National Assembly in the following  

terms:   

  “For its drafters, to ignore, to forget or to depreciate the rights of  

man are the sole causes of public misfortune and government  

corruption. These rights are natural rights, inalienable and  

sacred, the National Assembly recognizes and proclaims them-it  

does not grant, concede or establish them-and their conservation is  

the reason for all political communities; within these rights figures  

resistance to oppression”.               (emphasis supplied)  

42 In 1921, Roscoe Pound, in his work titled “The Spirit of the Common Law”,  

explained the meaning of natural rights:   

 “Natural rights mean simply interests which we think ought to be  

secured; demands which human beings may make which we think  

ought to be satisfied. It is perfectly true that neither law nor state

PART G   

36    

creates them. But it is fatal to all sound thinking to treat them as  

legal conceptions. For legal rights, the devices which law employs  

to secure such of these interests as it is expedient to recognize, are  

the work of the law and in that sense the work of the state.”47  

Two decades later in 1942, Pound in “The Revival of Natural Law” propounded       

that:   

“Classical natural law in the seventeenth and eighteenth centuries  

had three postulates. One was natural rights, qualities of the ideal  

or perfect man in a state of perfection by virtue of which he ought  

to have certain things or be able to do certain things. These were  

a guarantee of stability because the natural rights were taken  

to be immutable and inalienable. (2) The social compact, a  

postulated contract basis of civil society. Here was a guide to  

change. (3) An ideal law of which positive laws were only  

declaratory; an ideal body of perfect precepts governing human  

relations and ordering human conduct, guaranteeing the natural  

rights and expressing the social compact.”48 (emphasis supplied)  

43 In 1955, Edwin W Patterson in “A Pragmatist Looks At Natural Law and  

Natural Rights” observed that rights which individuals while making a social compact  

to create a government, reserve to themselves, are natural rights because they  

originate in a condition of nature and survive the social compact. In his words:  

“The basic rights of the citizen in our political society are regarded  

as continuing from a prepolitical condition or as arising in society  

independently of positive constitutions, statutes, and judicial  

decisions, which merely seek to “secure” or “safeguard” rights  

already reserved. These rights are not granted by a benevolent  

despot to his grateful subjects. The “natural rights” theory thus  

provided a convenient ideology for the preservation of such  

important rights as freedom of speech, freedom of religion and  

procedural due process of law.  As a pragmatist, I should prefer to  

                                                           47 Roscoe Pound, The Spirit of the Common Law, Marshall Jones Company (1921), at page 92  48 Roscoe Pound, “The Revival of Natural Law”, Notre Damne Lawyer (1942), Vol. 27, No 4, at page 330  

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37    

explain them as individual and social interests which arise or exist  

normally in our culture and are tuned into legal rights by being  

legally protected.” 49   

44 Natural rights are not bestowed by the state. They inhere in human beings  

because they are human. They exist equally in the individual irrespective of class or  

strata, gender or orientation.   

45 Distinguishing an inalienable right to an object from the object itself  

emphasises the notion of inalienability. All human beings retain their inalienable rights  

(whatever their situation, whatever their acts, whatever their guilt or innocence). The  

concept of natural inalienable rights secures autonomy to human beings. But the  

autonomy is not absolute, for the simple reason that, the concept of inalienable rights  

postulates that there are some rights which no human being may alienate. While  

natural rights protect the right of the individual to choose and preserve liberty, yet the  

autonomy of the individual is not absolute or total. As a theoretical construct, it would  

otherwise be strictly possible to hire another person to kill oneself or to sell oneself  

into slavery or servitude. Though these acts are autonomous, they would be in  

violation of inalienable rights. This is for the reason that:  

  “…These acts, however autonomous, would be in violation of  

inalienable rights, as the theories would have it. They would be  

morally invalid, and ineffective actually to alienate inalienable rights.   

Although self-regarding, they pretend to an autonomy that does not  

exist. Inalienable rights are precisely directed against such false  

                                                           49 Edwin W. Patterson, “A Pragmatist Looks At Natural Law and Natural Rights”, in  Arthur L. Harding ed., Natural  Law and Natural Rights (1955), at pages 62-63

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38    

autonomy.    

Natural inalienable rights, like other natural rights, have long rested  

upon what has been called the law of nature of natural law.  Perhaps  

all of the theories discussed above could be called law of nature or  

natural law theories. The American tradition, even as early as 1641,  

ten years before Thomas Hobbes published Leviathan, included  

claims of natural rights, and these claims appealed to the law of  

nature, often in terms.  Without a moral order of the law of nature  

sort, natural inalienable rights are difficult to pose. “’It is from natural  

law, and from it alone, that man obtains those rights we refer to as  

inalienable and inviolable…Human rights can have no foundation  

other than natural law.”50  

46 The idea that individuals can have rights against the State that are prior to rights  

created by explicit legislation has been developed as part of a liberal theory of law  

propounded by Ronald Dworkin. In his seminal work titled “Taking Rights  

Seriously”51 (1977), he states that:    

“Individual rights are political trumps held by individuals.  

Individuals have rights when, for some reason, a collective goal is  

not a sufficient justification for denying them what they wish, as  

individuals, to have or to do, or not a sufficient justification for  

imposing some loss or injury upon them.”52 (emphasis supplied)  

Dworkin asserts the existence of a right against the government as essential to  

protecting the dignity of the individual:   

“It makes sense to say that a man has a fundamental right  

against the Government, in the strong sense, like free speech,  

if that right is necessary to protect his dignity, or his standing  

                                                           50 Craig A. Ster and Gregory M. Jones, “The Coherence of Natural Inalienable Rights”, UMKC Law Review (2007- 08), Volume 76 (4), at pages 971-972  51 Ronald Dworkin, Taking Rights Seriously, Duckworth (1977)  52 Ibid, at page xi

PART G   

39    

as equally entitled to concern and respect, or some other  

personal value of like consequence.”53   (emphasis supplied)  

Dealing with the question whether the Government may abridge the rights of others  

to act when their acts might simply increase the risk, by however slight or speculative  

a margin, that some person’s right to life or property will be violated, Dworkin says :  

“But no society that purports to recognize a variety of rights, on the  

ground that a man’s dignity or equality may be invaded in a variety  

of ways, can accept such a principle54…  

If rights make sense, then the degrees of their importance cannot  

be so different that some count not at all when others are  

mentioned55…  

If the Government does not take rights seriously, then it does not  

take law seriously either56…”  

Dworkin states that judges should decide how widely an individual’s rights extend. He  

states:  

“Indeed, the suggestion that rights can be demonstrated by a  

process of history rather than by an appeal to principle shows either  

a confusion or no real concern about what rights are…  

This has been a complex argument, and I want to summarize it. Our  

constitutional system rests on a particular moral theory, namely,  

that men have moral rights against the state. The different clauses  

of the Bill of Rights, like the due process and equal protection  

clauses, must be understood as appealing to moral concepts rather  

than laying down particular concepts; therefore, a court that  

undertakes the burden of applying these clauses fully as law must                  

                                                           53 Ibid, at page 199  54 Ibid, at page 203  55 Ibid, at page 204  56  Ibid, at page 205

PART H   

40    

be an activist court, in the sense that it must be prepared to frame  

and answer questions of political morality…”57   

A later section of this judgment deals with how natural and inalienable rights have  

been developed in Indian precedent.    

H Evolution of the privacy doctrine in India   

47 Among the early decisions of this Court following Kharak Singh was R M  

Malkani v State of Maharashtra58.  In that case, this Court held that Section 25 of  

the Indian Telegraph Act, 1885 was not violated because :  

“Where a person talking on the telephone allows another person to  

record it or to hear it, it cannot be said that the other person who is  

allowed to do so is damaging, removing, tampering, touching  

machinery battery line or post for intercepting or acquainting himself  

with the contents of any message. There was no element of  

coercion or compulsion in attaching the tape recorder to the  

telephone.”59  

 This Court followed the same line of reasoning as it had in Kharak Singh while  

rejecting a privacy based challenge under Article 21. Significantly, the Court observed  

that :  

 “Article 21 was invoked by submitting that the privacy of the  

appellant’s conversation was invaded. Article 21 contemplates  

procedure established by law with regard to deprivation of life or  

personal liberty. The telephone conversation of an innocent citizen  

will be protected by Courts against wrongful or high handed  

interference by tapping the conversation. The protection is not for  

                                                           57  Ibid, at page 147  58 (1973) 1 SCC 471   59 Ibid, at page 476 (para 20)

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41    

the guilty citizen against the efforts of the police to vindicate the law  

and prevent corruption of public servants. It must not be understood  

that the Court will tolerate safeguards for the protection of the  

citizen to be imperilled by permitting the police to proceed by  

unlawful or irregular methods.”60  

 In other words, it was the targeted and specific nature of the interception which  

weighed with the Court, the telephone tapping being directed at a guilty person. Hence  

the Court ruled that the telephone conversation of an innocent citizen will be protected  

against wrongful interference by wiretapping.  

48 In Gobind61, a Bench of three judges of this Court considered a challenge to  

the validity of Regulations 855 and 856 of State Police Regulations under which a  

history sheet was opened against the petitioner who had been placed under  

surveillance. The Bench of three judges adverted to the decision in Kharak Singh  

and to the validation of the Police Regulations (other than domiciliary visits at night).  

By the time the decision was handed down in Gobind, the law in the US had evolved  

and this Court took note of the decision in Griswold v Connecticut62 (“Griswold”) in  

which a conviction under a statute on a charge of giving information and advice to  

married persons on contraceptive methods was held to be invalid. This Court adverted  

to the dictum that specific guarantees of the Bill of Rights have penumbras which  

create zones of privacy. The Court also relied upon the US Supreme Court decision  

in Jane Roe v Henry Wade63 in which the Court upheld the right of a married woman  

                                                           60 Ibid, at page 479 (para 31)  61 (1975) 2 SCC 148  62 381 US 479 (1965)  63 410 US 113 (1973)

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42    

to terminate her pregnancy as a part of the right of personal privacy. The following  

observations of Justice Mathew, who delivered the judgment of the Court do indicate  

a constitutional recognition of the right to be let alone :  

 “There can be no doubt that the makers of our Constitution wanted  

to ensure conditions favourable to the pursuit of happiness. They  

certainly realized as Brandeis, J. said in his dissent in Olmstead v.  

United States64, the significance of man’s spiritual nature, of his  

feelings and of his intellect and that only a part of the pain, pleasure,  

satisfaction of life can be found in material things and therefore,  

they must be deemed to have conferred upon the individual as  

against the government a sphere where he should be let alone”.65  

 These observations follow upon a reference to the Warren and Brandeis article; the  

two decisions of the US Supreme Court noted earlier; the writings of Locke and Kant;  

and to dignity, liberty and autonomy.   

49 Yet a close reading of the decision in Gobind would indicate that the Court  

eventually did not enter a specific finding on the existence of a right to privacy under  

the Constitution.  The Court indicated that if the Court does find that a particular right  

should be protected as a fundamental privacy right, it could be overridden only subject  

to a compelling interest of the State :  

 “There can be no doubt that privacy-dignity claims deserve to be  

examined with care and to be denied only when an important  

countervailing interest is shown to be superior. If the Court does  

find that a claimed right is entitled to protection as a  

fundamental privacy right, a law infringing it must satisfy the  

compelling State interest test. Then the question would be  

                                                           64 277 US 438  (1928)  65 Supra note 6, at page 155 (para 20)

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43    

whether a State interest is of such paramount importance as would  

justify an infringement of the right.”66    (emphasis supplied)  

While emphasising individual autonomy and the dangers of individual privacy being  

eroded by new developments that “will make it possible to be heard in the street what  

is whispered in the closet”, the Court had obvious concerns about adopting a broad  

definition of privacy since the right of privacy “is not explicit in the Constitution”.  

Observing that the concept of privacy overlaps with liberty, this Court noted thus :  

“Individual autonomy, perhaps the central concern of any system of  

limited government, is protected in part under our Constitution by  

explicit constitutional guarantees. In the application of the  

Constitution our contemplation cannot only be of what has been but  

what may be.  Time works changes and brings into existence  

new conditions. Subtler and far reaching means of invading  

privacy will make it possible to be heard in the street what is  

whispered in the closet. Yet, too broad a definition of privacy  

raises serious questions about the propriety of judicial  

reliance on a right that is not explicit in the Constitution. Of  

course, privacy primarily concerns the individual.  It therefore  

relates to and overlaps with the concept of liberty. The most serious  

advocate of privacy must confess that there are serious problems  

of defining the essence and scope of the right. Privacy interest in  

autonomy must also be placed in the context of other rights and  

values.”67  (emphasis supplied)  

Justice Mathew proceeded to explain what any right of privacy must encompass and  

protect and found it to be implicit in the concept of ordered liberty :  

 “Any right to privacy must encompass and protect the personal  

intimacies of the home, the family, marriage, motherhood,  

procreation and child rearing. This catalogue approach to the  

question is obviously not as instructive as it does not give an  

analytical picture of the distinctive characteristics of the right of  

                                                           66 Ibid, at page 155 (para 22)  67 Ibid, at page 156 (para 23)

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44    

privacy. Perhaps, the only suggestion that can be offered as  

unifying principle underlying the concept has been the assertion  

that a claimed right must be a fundamental right implicit in the  

concept of ordered liberty.”68  

 In adverting to ordered liberty, the judgment is similar to the statement in the judgment  

of Justice Rajagopala Ayyangar in Kharak Singh which found the intrusion of the  

home by nightly domiciliary visits a violation of ordered liberty.   

The Court proceeded to hold that in any event, the right to privacy will need a case to  

case elaboration. The following observations were carefully crafted to hold that even  

on the “assumption” that there is an independent right of privacy emanating from  

personal liberty, the right to movement and free speech, the right is not absolute:  

 “The right to privacy in any event will necessarily have to go through  

a process of case-by-case development. Therefore, even  

assuming that the right to personal liberty, the right to move  

freely throughout the territory of India and the freedom of  

speech create an independent right of privacy as an emanation  

from them which one can characterize as a fundamental right, we  

do not think that the right is absolute.”69                                              

(emphasis supplied)  

Again a similar “assumption” was made by the Court in the following observations:  

 “…Assuming that the fundamental rights explicitly guaranteed to a  

citizen have penumbral zones and that the right to privacy is itself a  

fundamental right, that fundamental right must be subject to  

restriction on the basis of compelling public interest.  As Regulation  

856 has the force of law, it cannot be said that the fundamental right  

of the petitioner under Article 21 has been violated by the provisions  

                                                           68 Ibid, at page 156 (para 24)  69 Ibid, at page 157 (para 28)

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45    

contained in it : for, what is guaranteed under that Article is that no  

person shall be deprived of his life or personal liberty except by the  

procedure established by ‘law’. We think that the procedure is  

reasonable having regard to the provisions of Regulations 853 (c)  

and 857.”70  (emphasis supplied)  

The Court declined to interfere with the regulations.    

50 The judgment in Gobind does not contain a clear statement of principle by the  

Court of the existence of an independent right of privacy or of such a right being an  

emanation from explicit constitutional guarantees.  The Bench, which consisted of  

three judges, may have been constrained by the dictum in the latter part of Kharak  

Singh.  Whatever be the reason, it is evident that in several places Justice Mathew  

proceeded on the “assumption” that if the right to privacy is protected under the  

Constitution, it is a part of ordered liberty and is not absolute but subject to restrictions  

tailor-made to fulfil a compelling state interest. This analysis of the decision in Gobind  

assumes significance because subsequent decisions of smaller Benches have  

proceeded on the basis that Gobind does indeed recognise a right to privacy. What  

the contours of such a right are, emerges from a reading of those decisions. This is  

the next aspect to which we now turn.  

51 Malak Singh v State of Punjab and Haryana71 (“Malak Singh”) dealt with the  

provisions of Section 23 of the Punjab Police Rules under which a surveillance register  

                                                           70 Ibid, at page 157-158 (para 31)  71 (1981) 1 SCC 420

PART H   

46    

was to be maintained among other persons, of all convicts of a particular description  

and persons who were reasonably believed to be habitual offenders whether or not,  

they were convicted.  The validity of the rules was not questioned in view of the  

decisions in Kharak Singh and Gobind.  The rules provided for modalities of  

surveillance. Justice O Chinnappa Reddy speaking for a Bench of two judges of this  

Court recognised the need for surveillance on habitual and potential offenders. In his  

view:  

“Prevention of crime is one of the prime purposes of the constitution  

of a police force. The preamble to the Police Act, 1861 says:  

“Whereas it is expedient to reorganise the police and to make it a  

more efficient instrument for the prevention and detection of crime.”  

Section 23 of the Police Act prescribes it as the duty of police  

officers “to collect and communicate intelligence affecting the public  

peace; to prevent the commission of offences and public  

nuisances”. In connection with these duties it will be necessary to  

keep discreet surveillance over reputed bad characters, habitual  

offenders and other potential offenders. Organised crime cannot be  

successfully fought without close watch of suspects. But,  

surveillance may be intrusive and it may so seriously encroach  

on the privacy of a citizen as to infringe his fundamental right  

to personal liberty guaranteed by Article 21 of the Constitution  

and the freedom of movement guaranteed by Article 19(1)(d). That  

cannot be permitted. This is recognised by the Punjab Police Rules  

themselves. Rule 23.7, which prescribes the mode of surveillance,  

permits the close watch over the movements of the person under  

surveillance but without any illegal interference. Permissible  

surveillance is only to the extent of a close watch over the  

movements of the person under surveillance and no more. So long  

as surveillance is for the purpose of preventing crime and is  

confined to the limits prescribed by Rule 23.7 we do not think a  

person whose name is included in the surveillance register can  

have a genuine cause for complaint. We may notice here that  

interference in accordance with law and for the prevention of  

disorder and crime is an exception recognised even by European  

Convention of Human Rights to the right to respect for a person's  

private and family life. Article 8 of the Convention reads as follows:

PART H   

47    

“(1) Everyone's right to respect for his private and  

family life, his home and his correspondence shall be  

recognised.  

(2) There shall be no interference by a public authority  

with the exercise of this right, except such as is in  

accordance with law and is necessary in a democratic  

society in the interests of national security, public  

safety, for the prevention of disorder and crime or for  

the protection of health or morals.””72   (emphasis  

supplied)  

The Court did not consider it unlawful for the police to conduct surveillance so long as  

it was for the purpose of preventing crime and was confined to the limits prescribed  

by Rule 23.7 which, while authorising a close watch on the movement of a person  

under surveillance, contained a condition that this should be without any illegal  

interference.  The object being to prevent crime, the Court held that the person who  

is subject to surveillance is not entitled to access the register nor was a pre-decisional  

hearing compliant with natural justice warranted. Confidentiality, this Court held, was  

required in the interest of the public, including keeping in confidence the sources of  

information.  Again the Court held:  

“But all this does not mean that the police have a licence to enter  

the names of whoever they like (dislike?) in the surveillance  

register; nor can the surveillance be such as to squeeze the  

fundamental freedoms guaranteed to all citizens or to obstruct the  

free exercise and enjoyment of those freedoms; nor can the  

surveillance so intrude as to offend the dignity of the individual.  

Surveillance of persons who do not fall within the categories  

mentioned in Rule 23.4 or for reasons unconnected with the  

prevention of crime, or excessive surveillance falling beyond the  

limits prescribed by the rules, will entitle a citizen to the court's  

protection which the court will not hesitate to give. The very Rules  

                                                           72 Ibid, at pages 424-425 (para 6)

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48    

which prescribe the conditions for making entries in the surveillance  

register and the mode of surveillance appear to recognise the  

caution and care with which the police officers are required to  

proceed. The note following Rule 23.4 is instructive. It enjoins a duty  

upon the police officer to construe the rule strictly and confine the  

entries in the surveillance register to the class of persons mentioned  

in the rule. Similarly Rule 23.7 demands that there should be no  

illegal interference in the guise of surveillance. Surveillance,  

therefore, has to be unobtrusive and within bounds.”73  

The observations in Malak Singh on the issue of privacy indicate that an  

encroachment on privacy infringes personal liberty under Article 21 and the right to  

the freedom of movement under Article 19(1)(d). Without specifically holding that  

privacy is a protected constitutional value under Article 19 or Article 21, the judgment  

of this Court indicates that serious encroachments on privacy impinge upon personal  

liberty and the freedom of movement. The Court linked such an encroachment with  

the dignity of the individual which would be offended by surveillance bereft of  

procedural protections and carried out in a manner that would obstruct the free  

exercise of freedoms guaranteed by the fundamental rights.  

52 State of Maharashtra v Madhukar Narayan Mardikar74 is another decision by  

a two-judge Bench which dealt with a case of a police inspector who was alleged to  

have attempted to have non-consensual intercourse with a woman by entering the  

hutment where she lived. Following an enquiry, he was dismissed from service but  

the punishment was modified, in appeal, to removal so as to enable him to apply for  

                                                           73 Ibid, at page 426 (para 9)  74 (1991) 1 SCC 57

PART H   

49    

pensionary benefits.  The High Court quashed the punishment both on the ground of  

a violation of the principles of natural justice, and by questioning the character of the  

victim.  Holding that this approach of the High Court was misconceived, Justice A M  

Ahmadi (as the learned Chief Justice then was) held that though the victim had  

admitted “the dark side of her life”, she was yet entitled to her privacy :    

“The High Court observes that since Banubi is an unchaste woman  

it would be extremely unsafe to allow the fortune and career of a  

government official to be put in jeopardy upon the uncorroborated  

version of such a woman who makes no secret of her illicit intimacy  

with another person. She was honest enough to admit the dark side  

of her life. Even a woman of easy virtue is entitled to privacy  

and no one can invade her privacy as and when he likes. So  

also it is not open to any and every person to violate her  

person as and when he wishes. She is entitled to protect her  

person if there is an attempt to violate it against her wish. She  

is equally entitled to the protection of law. Therefore, merely  

because she is a woman of easy virtue, her evidence cannot  

be thrown overboard. At the most the officer called upon to  

evaluate her evidence would be required to administer caution unto  

himself before accepting her evidence.”75 (emphasis supplied)  

 As the above extract indicates, the issue before this Court was essentially based on  

the appreciation of the evidence of the victim by the High Court.  However, the  

observations of this Court make a strong statement of the bodily integrity of a woman,  

as an incident of her privacy.    

53 The decision In Life Insurance Corporation of India v Prof Manubhai D  

Shah76,  incorrectly attributed to the decision in Indian Express Newspapers  

                                                           75 Ibid, at pages 62-63 (para 8)  76 (1992) 3 SCC 637

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50    

(Bombay) Pvt Ltd v Union of India77 the principle that the right to free expression  

under Article 19(1)(a) includes the privacy of communications.  The judgment of this  

Court in Indian Express cited a U N Report but did no more.    

54 The decision which has assumed some significance is Rajagopal78 . In that  

case, in a proceeding under Article 32 of the Constitution, a writ was sought for  

restraining the state and prison authorities from interfering with the publication of an  

autobiography of a condemned prisoner in a magazine.  The prison authorities, in a  

communication to the publisher, denied the claim that the autobiography had been  

authored by the prisoner while he was confined to jail and opined that a publication in  

the name of a convict was against prison rules. The prisoner in question had been  

found guilty of six murders and was sentenced to death. Among the questions which  

were posed by this Court for decision was whether a citizen could prevent another  

from writing about the life story of the former and whether an unauthorized publication  

infringes the citizen’s right to privacy.  Justice Jeevan Reddy speaking for a Bench of  

two judges recognised that the right of privacy has two aspects: the first affording an  

action in tort for damages resulting from an unlawful invasion of privacy, while the  

second is a constitutional right. The judgment traces the constitutional protection of  

privacy to the decisions in Kharak Singh and Gobind. This appears from the  

following observations:  

                                                           77 (1985) 1 SCC 641  78 (1994) 6 SCC 632

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51    

“…The first decision of this Court dealing with this aspect is Kharak  

Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 :  

(1963) 2 Cri LJ 329] A more elaborate appraisal of this right took  

place in a later decision in Gobind v.State of M.P.[(1975) 2 SCC  

148 : 1975 SCC (Cri) 468] wherein Mathew, J. speaking for himself,  

Krishna Iyer and Goswami, JJ. traced the origins of this right and  

also pointed out how the said right has been dealt with by the United  

States Supreme Court in two of its well-known decisions  

in Griswold v. Connecticut [381 US 479 : 14 L Ed 2d 510 (1965)]  

and Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)]…”79  

 The decision in Rajagopal considers the decisions in Kharak Singh and Gobind thus:  

“… Kharak Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963)  

2 Cri LJ 329] was a case where the petitioner was put under  

surveillance as defined in Regulation 236 of the U.P. Police  

Regulations…  

Though right to privacy was referred to, the decision turned on the  

meaning and content of “personal liberty” and “life” in Article  

21. Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] was also a  

case of surveillance under M.P. Police Regulations. Kharak  

Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329]  

was followed even while at the same time elaborating the right to  

privacy…”80  

 The Court held that neither the State nor its officials can impose prior restrictions on  

the publication of an autobiography of a convict.  In the course of its summary of the  

decision, the Court held:  

                                                           79 Ibid, at pages 639-640 (para 9)  80 Ibid, at page 643 (para 13)

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52    

“(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  

home, 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

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respectively of the Constitution of India, represent exceptions to this  

rule…”81  

55 The judgment of Justice Jeevan Reddy regards privacy as implicit in the right  

to life and personal liberty under Article 21. In coming to the conclusion, the judgment  

in Rajagopal notes that while Kharak Singh had referred to the right of privacy, the  

decision turned on the content of life and personal liberty in Article 21. The decision  

recognises privacy as a protected constitutional right, while tracing it to Article 21.  

56  In an interesting research article on ‘State’s surveillance and the right to  

privacy’, a contemporary scholar has questioned the theoretical foundation of the  

decision in Rajagopal on the ground that the case essentially dealt with cases in the  

US concerning privacy against governmental intrusion which was irrelevant in the  

factual situation before this Court.82 In the view of the author, Rajagopal involved a    

publication of an article by a private publisher in a magazine, authored by a private  

individual, albeit a convict. Hence the decision has been criticized on the ground that  

Rajagopal was about an action between private parties and, therefore, ought to have  

dealt with privacy in the context of tort law.83 While it is true that in Rajagopal it is a  

private publisher who was seeking to publish an article about a death row convict, it  

is equally true that the Court dealt with a prior restraint on publication imposed by the  

                                                           81 Ibid, at pages 649-650 (para 26)  82 Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”, National  

Law School of India Review (2014), Vol. 26(2), at pages 138-139   83 Ibid

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54    

state and its prison officials. That is, in fact, how Article 32 was invoked by the  

publisher.    

57 The intersection between privacy and medical jurisprudence has been dealt  

with in a series of judgments of this Court, among them being Mr X v Hospital Z84 .  

In that case, the appellant was a doctor in the health service of a state. He was  

accompanying a patient for surgery from Nagaland to Chennai and was tested when  

he was to donate blood. The blood sample was found to be HIV+. The appellant  

claiming to have been socially ostracized by the disclosure of his HIV+ status by the  

hospital, filed a claim for damages before the National Consumer Disputes Redressal  

Commission (NCDRC) alleging that the hospital had unauthorizedly disclosed his HIV  

status resulting in his marriage being called off and in social opprobrium.  Justice  

Saghir Ahmad, speaking for a Bench of two judges of this Court, adverted to the duty  

of the doctor to maintain secrecy in relation to the patient but held that there is an  

exception to the rule of confidentiality where public interest will override that duty. The  

judgment of this Court dwelt on the right of privacy under Article 21 and other  

provisions of the Constitution relating to the fundamental rights and the Directive  

Principles:  

“Right to privacy has been culled out of the provisions of Article 21  

and other provisions of the Constitution relating to the Fundamental  

Rights read with the Directive Principles of State Policy. It was in  

this context that it was held by this Court in Kharak Singh v. State  

of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332] that police  

surveillance of a person by domiciliary visits would be violative of  

                                                           84 (1998) 8 SCC 296

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Article 21 of the Constitution. This decision was considered by  

Mathew, J. in his classic judgment in Gobind v. State of  

M.P. [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] in which the origin  

of “right to privacy” was traced and a number of American decisions,  

including Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)]  

, Wolf v. Colorado [338 US 25 : 93 L Ed 1782 (1949)] and various  

articles were considered…”85  

The Court read the decision in Malak Singh as reiterating the view taken earlier, on  

privacy in Kharak Singh and Gobind.  The Court proceeded to rely on the decision  

in Rajagopal. The Court held that the right to privacy is not absolute and is subject to  

action lawfully taken to prevent crime or disorder or to protect the health, morals and  

the rights and freedoms of others. Public disclosure of even true facts, the Court held,  

may amount to invasion of the right to privacy or the right to be let alone when a doctor  

breaches confidentiality.  The Court held that:  

“Disclosure of even true private facts has the tendency to disturb a  

person's tranquillity. It may generate many complexes in him and  

may even lead to psychological problems. He may, thereafter, have  

a disturbed life all through. In the face of these potentialities, and as  

already held by this Court in its various decisions referred to above,  

the right of privacy is an essential component of the right to life  

envisaged by Article 21. The right, however, is not absolute and  

may be lawfully restricted for the prevention of crime, disorder or  

protection of health or morals or protection of rights and freedom of  

others.”86  

 However, the disclosure that the appellant was HIV+ was held not to be violative of  

the right to privacy of the appellant on the ground that the woman to whom he was to  

                                                           85 Ibid, at page 305 (para 21)  86 Ibid, at page 307 (para 28)

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be married “was saved in time by such disclosure and from the risk of being infected”.   

The denial of a claim for compensation by the NCDRC was upheld.  

58 The decision in Mr X v Hospital Z fails to adequately appreciate that the latter  

part of the decision in Kharak Singh declined to accept privacy as a constitutional  

right, while the earlier part invalidated domiciliary visits in the context of an invasion  

of ‘ordered liberty’. Similarly, several observations in Gobind proceed on an  

assumption: if there is a right of privacy, it would comprehend certain matters and  

would be subject to a regulation to protect compelling state interests.   

59 In a decision of a Bench of two judges of this Court in PUCL87, the Court dealt  

with telephone tapping. The petitioner challenged the constitutional validity of Section  

5(2) of the Indian Telegraph Act, 1885 and urged in the alternative for adopting  

procedural safeguards to curb arbitrary acts of telephone tapping. Section 5(2)  

authorises the interception of messages in transmission in the following terms:  

“On the occurrence of any public emergency, or in the interest of  

the public safety, the Central Government or a State Government  

or any officer specially unauthorised in this behalf by the Central  

Government or a State Government may, if satisfied that it is  

necessary or expedient so to do in the interests of the sovereignty  

and integrity of India, the security of the State, friendly relations with  

foreign States or public order or for preventing incitement to the  

commission of an offence, for reasons to be recorded in writing, by  

order, direct that any message or class of messages to or from any  

person or class of persons, or relating to any particular subject,  

brought for transmission by or transmitted or received by any  

                                                           87 (1997) 1 SCC 301  

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telegraph, shall not be transmitted, or shall be intercepted or  

detained, or shall be disclosed to the Government making the order  

or an officer thereof mentioned in the order:  

Provided that press messages intended to be published in India of  

correspondents accredited to the Central Government or a State  

Government shall not be intercepted or detained, unless their  

transmission has been prohibited under this sub-section.”  

60 The submission on the invalidity of the statutory provision authorising telephone  

tapping was based on the right to privacy being a fundamental right under Articles  

19(1) and 21 of the Constitution. Justice Kuldip Singh adverted to the observations  

contained in the majority judgment in Kharak Singh which led to the invalidation of  

the provision for domiciliary visits at night under Regulation 236(b).   PUCL cited the  

minority view of Justice Subba Rao as having gone even further by invalidating  

Regulation 236, in its entirety.  The judgment, therefore, construes both the majority  

and minority judgments as having affirmed the right to privacy as a part of Article 21:  

“Article 21 of the Constitution has, therefore, been interpreted by all  

the seven learned Judges in Kharak Singh case [(1964) 1 SCR 332  

: AIR 1963 SC 1295] (majority and the minority opinions) to include  

that “right to privacy” as a part of the right to “protection of life and  

personal liberty” guaranteed under the said Article.”88  

Gobind was construed to have upheld the validity of State Police Regulations  

providing surveillance on the ground that the ‘procedure established by law’ under  

Article 21 had not been violated.  After completing its summation of precedents,  

Justice Kuldip Singh held as follows:  

                                                           88 Ibid, at page 310 (para 14)

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“We have, therefore, no hesitation in holding that right to privacy is  

a part of the right to “life” and “personal liberty” enshrined under  

Article 21 of the Constitution.  Once the facts in a given case  

constitute a right to privacy, Article 21 is attracted. The said right  

cannot be curtained “except according to procedure established by  

law”.”89  

   Telephone conversations were construed to be an important ingredient of privacy and  

the tapping of such conversations was held to infringe Article 21, unless permitted by  

‘procedure established by law’ :  

“The right to privacy — by itself — has not been identified under the  

Constitution. As a concept it may be too broad and moralistic to  

define it judicially. Whether right to privacy can be claimed or has  

been infringed in a given case would depend on the facts of the said  

case. But the right to hold a telephone conversation in the privacy  

of one's home or office without interference can certainly be claimed  

as “right to privacy”. Conversations on the telephone are often of an  

intimate and confidential character. Telephone conversation is a  

part of modern man's life. It is considered so important that more  

and more people are carrying mobile telephone instruments in their  

pockets. Telephone conversation is an important facet of a man's  

private life. Right to privacy would certainly include telephone  

conversation in the privacy of one's home or office. Telephone-

tapping would, thus, infract Article 21 of the Constitution of India  

unless it is permitted under the procedure established by law.”90  

The Court also held that telephone tapping infringes the guarantee of free speech and  

expression under Article 19(1)(a) unless authorized by Article 19(2).  The judgment  

relied on the protection of privacy under Article 17 of the International Covenant on  

Civil and Political Rights (and a similar guarantee under Article 12 of the Universal  

Declaration of Human Rights) which, in its view, must be an interpretative tool for  

                                                           89 Ibid, at page 311 (para 17)  90 Ibid, at page 311 (para 18)

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construing the provisions of the Constitution. Article 21, in the view of the Court, has  

to be interpreted in conformity with international law.  In the absence of rules providing  

for the precautions to be adopted for preventing improper interception and/or  

disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could  

not be safeguarded.  But the Court was not inclined to require prior judicial scrutiny  

before intercepting telephone conversations. The Court ruled that it would be  

necessary to lay down procedural safeguards for the protection of the right to privacy  

of a person until Parliament intervened by framing rules under Section 7 of the  

Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases  

envisaging telephone tapping.   

61 The judgment in PUCL construes the earlier decisions in Kharak Singh  

(especially the majority view on the invalidity of domiciliary visits), Gobind and  

Rajagopal in holding that the right to privacy is embodied as a constitutionally  

protected right under Article 21. The Court was conscious of the fact that the right to  

privacy has “by itself” not been identified under the Constitution. The expression “by  

itself” may indicate one of two meanings. The first is that the Constitution does not  

recognise a standalone right to privacy.  The second recognizes that there is no  

express delineation of such a right. Evidently, the Court left the evolution of the  

contours of the right to a case by case determination.  Telephone conversations from  

the home or office were construed to be an integral element of the privacy of an  

individual.  In PUCL, the Court consciously established the linkages between various  

articles conferring guarantees of fundamental rights when it noted that wire-tapping

PART H   

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infringes privacy and in consequence the right to life and personal liberty under Article  

21 and the freedom of speech and expression under Article 19(1)(a). The need to  

read the fundamental constitutional guarantees with a purpose illuminated by India’s  

commitment to the international regime of human rights’ protection also weighed in  

the decision. Section 5(2) of the Telegraph Act was to be regulated by rules framed  

by the Government to render the modalities of telephone tapping fair, just and  

reasonable under Article 21. The importance which the Court ascribes to privacy is  

evident from the fact that it did not await the eventual formulation of rules by  

Parliament and prescribed that in the meantime, certain procedural safeguards which  

it envisaged should be put into place.  

62 While dealing with a case involving the rape of an eight year old child, a three-

judge Bench of this Court in State of Karnataka v Krishnappa91 held:   

“Sexual violence apart from being… dehumanising… is an unlawful  

intrusion of the right to privacy and sanctity… It… offends her…  

dignity.”92  

Similar observations were made in Sudhansu Sekhar Sahoo v State of Orissa93.  

63 In Sharda v Dharmpal94, the appellant and respondent were spouses. The  

respondent sued for divorce and filed an application for conducting a medical  

examination of the appellant which was opposed.  The Trial Court allowed the  

                                                           91 (2000) 4 SCC 75  92 Ibid, at page 82 (para 15)  93  (2002) 10 SCC 743  94 (2003) 4 SCC 493

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application.  The High Court dismissed the challenge in a Civil Revision which led the  

appellant to move this Court. The appellant argued before this Court that compelling  

her to undergo a medical examination violated her personal liberty under Article 21  

and that in the absence of an empowering provision, the matrimonial Court had no  

jurisdiction to compel a party to undergo a medical examination. Justice S B Sinha,  

speaking for the Bench of three judges, dealt with the first aspect of the matter  

(whether a matrimonial Court has jurisdiction to order a medical examination) in the  

following terms:  

“Even otherwise the court may issue an appropriate direction so as  

to satisfy itself as to whether apart from treatment he requires  

adequate protection inter alia by way of legal aid so that he may not  

be subject to an unjust order because of his incapacity. Keeping in  

view of the fact that in a case of mental illness the court has  

adequate power to examine the party or get him examined by a  

qualified doctor, we are of the opinion that in an appropriate case  

the court may take recourse to such a procedure even at the  

instance of the party to the lis95…  

Furthermore, the court must be held to have the requisite power  

even under Section 151 of the Code of Civil Procedure to issue  

such direction either suo motu or otherwise which, according to him,  

would lead to the truth.96”  

64 The second question considered by the Court was whether a compulsive  

subjecting of a person to a medical examination violates Article 21.  After noticing the  

observations in M P Sharma and Kharak Singh where it was held that the  

Constitution has not guaranteed the right of privacy, the Court held that in subsequent  

decisions, such a right has been read into Article 21 on an expansive interpretation of  

                                                           95 Ibid, at page 513 (para 52)  96 Ibid, at page 513 (para 53)

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personal liberty. In the course of its judgment, the Court adverted to the decisions in  

Rajagopal, PUCL, Gobind and Mr X v Hospital Z on the basis of which it stated that  

it had “outlined the law relating to privacy in India”.  In the view of this Court, in  

matrimonial cases where a decree of divorce is sought on medical grounds, a medical  

examination is the only way in which an allegation could be proved. In such a situation:   

“If the respondent avoids such medical examination on the ground  

that it violates his/her right to privacy or for that matter right to  

personal liberty as enshrined under Article 21 of the Constitution of  

India, then it may in most of such cases become impossible to arrive  

at a conclusion. It may render the very grounds on which divorce is  

permissible nugatory. Therefore, when there is no right to privacy  

specifically conferred by Article 21 of the Constitution of India and  

with the extensive interpretation of the phrase “personal liberty” this  

right has been read into Article 21, it cannot be treated as an  

absolute right…”97  

The right of privacy was held not to be breached.   

65 In District Registrar and Collector, Hyderabad v Canara Bank98 (“Canara  

Bank”), a Bench of two judges of this Court considered the provisions of the Indian  

Stamp Act, 1899 (as amended by a special law in Andhra Pradesh).  Section 73, which  

was invalidated by the High Court, empowered the Collector to inspect registers,  

books and records, papers, documents and proceedings in the custody of any public  

officer ‘to secure any duty or to prove or would lead to the discovery of a fraud or  

omission’. Section 73 was in the following terms:   

                                                           97 Ibid, at page 523 (para 76)  98 (2005) 1 SCC 496

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“73. Every public officer having in his custody any registers, books,  

records, papers, documents or proceedings, the inspection whereof  

may tend to secure any duty, or to prove or lead to the discovery of  

any fraud or omission in relation to any duty, shall at all reasonable  

times permit any person authorised in writing by the Collector to  

inspect for such purpose the registers, books, papers, documents  

and proceedings, and to take such notes and extracts as he may  

deem necessary, without fee or charge.”  

 After adverting to the evolution of the doctrine of privacy in the US from a right  

associated with property99 to a right associated with the individual100, Chief Justice  

Lahoti referred to the penumbras created by the Bill of Rights resulting in a zone of  

privacy101 leading up eventually to a “reasonable expectation of privacy”102. Chief  

Justice Lahoti considered the decision in M P Sharma to be “of limited help” to the  

discussion on privacy.  However, it was Kharak Singh which invalidated nightly-

domiciliary visits that provided guidance on the issue.  The evaluation of Kharak  

Singh was in the following terms:  

 “In…Kharak Singh v State of U P [(1964) 1 SCR 332 : (1963) 2  

Cri LJ 329] the U.P. Regulations regarding domiciliary visits were in  

question and the majority referred to Munn v. Illinois [94 US 113  

: 24 L Ed 77 (1877)] and held that though our Constitution did  

not refer to the right to privacy expressly, still it can be traced  

from the right to “life” in Article 21. According to the majority,  

clause 236 of the relevant Regulations in U.P., was bad in law; it  

offended Article 21 inasmuch as there was no law permitting  

interference by such visits. The majority did not go into the question  

whether these visits violated the “right to privacy”. But, Subba Rao,  

J. while concurring that the fundamental right to privacy was part of  

the right to liberty in Article 21, part of the right to freedom of speech  

and expression in Article 19(1)(a), and also of the right to movement  

in Article 19(1)(d), held that the Regulations permitting surveillance  

                                                           99 Boyd v United States, 116 US 616 (1886)  100 Olmstead v United States,  277 US 438 (1928)  101 Griswold v State of Connecticut, 381 US 479 (1965)  102  Katz v United States, 389 US 347 (1967)

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violated the fundamental right of privacy. In the discussion the  

learned Judge referred to Wolf v. Colorado [338 US 25 : 93 L Ed  

1782 (1949)] . In effect, all the seven learned Judges held that  

the “right to privacy” was part of the right to “life” in Article  

21.”103 (emphasis supplied)  

 The decision in Gobind is construed to have implied the right to privacy in Articles  

19(1)(a) and 21 of the Constitution:  

 “We have referred in detail to the reasons given by Mathew, J.  

in Gobind to show that, the right to privacy has been implied  

in Articles 19(1)(a) and (d) and Article 21; that, the right is not  

absolute and that any State intrusion can be a reasonable  

restriction only if it has reasonable basis or reasonable materials to  

support it.”104       (emphasis supplied)   

The Court dealt with the application of Section 73 of the Indian Stamp Act (as  

amended), to documents of a customer in the possession of a bank. The Court held:  

“Once we have accepted in Gobind [(1975) 2 SCC 148 : 1975 SCC  

(Cri) 468] and in later cases that the right to privacy deals with  

“persons and not places”, the documents or copies of documents of  

the customer which are in a bank, must continue to remain  

confidential vis-à-vis the person, even if they are no longer at the  

customer's house and have been voluntarily sent to a bank. If that  

be the correct view of the law, we cannot accept the line  

of Miller [425 US 435 (1976)] in which the Court proceeded on the  

basis that the right to privacy is referable to the right of “property”  

theory. Once that is so, then unless there is some probable or  

reasonable cause or reasonable basis or material before the  

Collector for reaching an opinion that the documents in the  

possession of the bank tend to secure any duty or to prove or to  

lead to the discovery of any fraud or omission in relation to any duty,  

the search or taking notes or extracts therefore, cannot be valid.  

The above safeguards must necessarily be read into the provision  

                                                           103 Supra Note 95, at page 516 (para 36)  104 Ibid, at page 518 (para 39)

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relating to search and inspection and seizure so as to save it from  

any unconstitutionality.”105  

Hence the Court repudiated the notion that a person who places documents with a  

bank would, as a result, forsake an expectation of confidentiality.  In the view of the  

Court, even if the documents cease to be at a place other than in the custody and  

control of the customer, privacy attaches to persons and not places and hence the  

protection of privacy is not diluted.  Moreover, in the view of the Court, there has to be  

a reasonable basis or material for the Collector to form an opinion that the documents  

in the possession of the bank would secure the purpose of investigating into an act of  

fraud or an omission in relation to duty.  The safeguards which the Court introduced  

were regarded as being implicit in the need to make a search of this nature  

reasonable. The second part of the ruling of the Court is equally important for it finds  

fault with a statutory provision which allows an excessive delegation of the power  

conferred upon the Collector to inspect documents. The provision, the Court rules,  

would allow the customers’ privacy to be breached by non-governmental persons.  

Hence the statute, insofar as it allowed the Collector to authorize any person to seek  

inspection, would be unenforceable. In the view of the Court:  

“Secondly, the impugned provision in Section 73 enabling the  

Collector to authorise “any person” whatsoever to inspect, to take  

notes or extracts from the papers in the public office suffers from  

the vice of excessive delegation as there are no guidelines in the  

Act and more importantly, the section allows the facts relating to the  

customer's privacy to reach non-governmental persons and would,  

on that basis, be an unreasonable encroachment into the  

customer's rights. This part of Section 73 permitting delegation to  

                                                           105 Ibid, at page 523 (para 53)

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“any person” suffers from the above serious defects and for that  

reason is, in our view, unenforceable. The State must clearly define  

the officers by designation or state that the power can be delegated  

to officers not below a particular rank in the official hierarchy, as  

may be designated by the State.”106  

66 The significance of the judgment in Canara Bank lies first in its reaffirmation of  

the right to privacy as emanating from the liberties guaranteed by Article 19 and from  

the protection of life and personal liberty under Article 21.  Secondly, the Court finds  

the foundation for the reaffirmation of this right not only in the judgments in Kharak  

Singh and Gobind and the cases which followed, but also in terms of India’s  

international commitments under the Universal Declaration of Human Rights (UDHR)  

and International Covenant on Civil and Political Rights (ICCPR). Thirdly, the right to  

privacy is construed as a right which attaches to the person. The significance of this  

is that the right to privacy is not lost as a result of confidential documents or information  

being parted with by the customer to the custody of the bank.  Fourthly, the Court  

emphasised the need to read procedural safeguards to ensure that the power of  

search and seizure of the nature contemplated by Section 73 is not exercised  

arbitrarily. Fifthly, access to bank records to the Collector does not permit a delegation  

of those powers by the Collector to a private individual. Hence even when the power  

to inspect and search is validly exercisable by an organ of the state, necessary  

safeguards would be required to ensure that the information does not travel to  

unauthorised private hands. Sixthly, information provided by an individual to a third  

party (in that case a bank) carries with it a reasonable expectation that it will be utilised  

                                                           106 Ibid, at page 524 (para 54)

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only for the purpose for which it is provided. Parting with information (to the bank)  

does not deprive the individual of the privacy interest. The reasonable expectation is  

allied to the purpose for which information is provided. Seventhly, while legitimate  

aims of the state, such as the protection of the revenue may intervene to permit a  

disclosure to the state, the state must take care to ensure that the information is not  

accessed by a private entity. The decision in Canara Bank has thus important  

consequences for recognising informational privacy.   

67 After the decision in Canara Bank, the provisions for search and seizure under  

Section 132(5) of the Income Tax Act, 1961 were construed strictly by this Court in P  

R Metrani v Commissioner of Income Tax107 on the ground that they constitute a  

“serious intrusion into the privacy of a citizen”. Similarly, the search and seizure  

provisions of Sections 42 and 43 of the NDPS108 Act were construed by this Court in  

Directorate of Revenue v Mohd Nisar Holia109.  Adverting to Canara Bank, among  

other decisions, the Court held that the right to privacy is crucial and imposes a  

requirement of a written recording of reasons before a search and seizure could be  

carried out.    

68 Section 30 of the Punjab Excise Act, 1914 prohibited the employment of “any  

man under the age of 25 years” or “any woman” in any part of the premises in which  

                                                           107 (2007) 1 SCC 789  108 Narcotic Drugs and Psychotropic Substances Act, 1985  109 (2008) 2 SCC 370   

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liquor or an intoxicating drug is consumed by the public. The provision was also  

challenged in Anuj Garg v Hotel Association of India110 on the ground that it violates  

the right to privacy. While holding that the provision is ultra vires, the two-judge Bench  

observed:  

“Privacy rights prescribe autonomy to choose profession  

whereas security concerns texture methodology of delivery of this  

assurance. But it is a reasonable proposition that that the measures  

to safeguard such a guarantee of autonomy should not be so strong  

that the essence of the guarantee is lost. State protection must not  

translate into censorship111…  

Instead of prohibiting women employment in the bars altogether the  

state should focus on factoring in ways through which unequal  

consequences of sex differences can be eliminated. It is state’s duty  

to ensure circumstances of safety which inspire confidence in  

women to discharge the duty freely in accordance to the  

requirements of the profession they choose to follow. Any other  

policy inference (such as the one embodied under Section 30)  

from societal conditions would be oppressive on the women  

and against the privacy rights112…  

The Court’s task is to determine whether the measures  

furthered by the State in form of legislative mandate, to  

augment the legitimate aim of protecting the interests of  

women are proportionate to the other bulk of well-settled  

gender norms such as autonomy, equality of opportunity, right  

to privacy et al.113” (emphasis supplied)  

69 In Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat114 (“Hinsa  

Virodhak Sangh”), this Court dealt with the closure of municipal slaughterhouses in  

the city of Ahmedabad for a period of nine days each year during the Jain observance  

                                                           110 (2008) 3 SCC 1  111 Ibid, at page 15 (para 35)  112 Ibid, at pages 16-17 (para 43)  113 Ibid, at page 19 (para 51)  114 (2008) 5 SCC 33

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of paryushan, pursuant to the resolution of the municipal corporation. The High Court  

had set aside the resolutions. In appeal, this Court observed as follows:   

“Had the impugned resolutions ordered closure of municipal  

slaughterhouses for a considerable period of time we may have  

held the impugned resolutions to be invalid being an excessive  

restriction on the rights of the butchers of Ahmedabad who practise  

their profession of meat selling. After all, butchers are practising a  

trade and it is their fundamental right under Article 19(1)(g) of the  

Constitution which is guaranteed to all citizens of India. Moreover,  

it is not a matter of the proprietor of the butchery shop alone. There  

may be also several workmen therein who may become  

unemployed if the slaughterhouses are closed for a considerable  

period of time, because one of the conditions of the licence given  

to the shop-owners is to supply meat regularly in the city of  

Ahmedabad and this supply comes from the municipal  

slaughterhouses of Ahmedabad. Also, a large number of people are  

non-vegetarian and they cannot be compelled to become  

vegetarian for a long period. What one eats is one's personal  

affair and it is a part of his right to privacy which is included in  

Article 21 of our Constitution as held by several decisions of  

this Court. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632 :  

AIR 1995 SC 264] (vide SCC para 26 : AIR para 28) this Court held  

that the right to privacy is implicit in the right to life and liberty  

guaranteed by Article 21. It is a “right to be let alone”.”115                                                                       

(emphasis supplied)  

However, since the closure of slaughterhouses was for a period of nine days, the  

Court came to the conclusion that it did not encroach upon the freedom guaranteed  

by Article 19(1)(g). The restriction was held not to be excessive.    

                                                           115 Ibid, at pages 46-47 (para 27)

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70 The decision in the State of Maharashtra v Bharat Shanti Lal Shah116 deals  

with the constitutional validity of Sections 13 to 16 of the Maharashtra Control of  

Organized Crime Act (MCOCA) which inter alia contains provisions for intercepting  

telephone and wireless communications. Upholding the provision, the Court  

observed:  

“The object of MCOCA is to prevent the organised crime and a  

perusal of the provisions of the Act under challenge would indicate  

that the said law authorises the interception of wire, electronic or  

oral communication only if it is intended to prevent the commission  

of an organised crime or if it is intended to collect the evidence to  

the commission of such an organised crime. The procedures  

authorising such interception are also provided therein with enough  

procedural safeguards, some of which are indicated and discussed  

hereinbefore.”117  

The safeguards that the Court adverts to in the above extract include Section 14,  

which requires details of the organized crime that is being committed or is about to be  

committed, before surveillance could be authorized. The requirements also mandate  

describing the nature and location of the facilities from which the communication is to  

be intercepted, the nature of the communication and the identity of the person, if it is  

known. A statement is also necessary on whether other modes of enquiry or  

intelligence gathering were tried or had failed or why they reasonably appear to be  

unlikely to succeed if tried or whether these would be too dangerous or would likely  

result in the identification of those connected with the operation. The duration of the  

surveillance is restricted in time and the provision requires “minimal interception”118.   

                                                           116 (2008) 13 SCC 5  117 Ibid, at page 28 (para 61)  118 Gautam Bhatia (supra note 82), at page 148

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71 During the course of the last decade, this Court has had occasion to deal with  

the autonomy of a woman and, as an integral part, her control over the body.  Suchita  

Srivastava v Chandigarh Administration119 (“Suchita Srivastava”) arose in the  

context of the Medical Termination of Pregnancy Act (MTP) Act, 1971. A woman who  

was alleged to have been raped while residing in a welfare institution run by the  

government was pregnant. The district administration moved the High Court to seek  

termination of the pregnancy. The High Court directed that the pregnancy be  

terminated though medical experts had opined that the victim had expressed her  

willingness to bear the child.  The High Court had issued this direction without the  

consent of the woman which was mandated under the statute where the woman is a  

major and does not suffer from a mental illness. The woman in this case was found to  

suffer from a case of mild to moderate mental retardation.  Speaking for a Bench of  

three judges, Chief Justice Balakrishnan held that the reproductive choice of the  

woman should be respected having regard to the mandate of Section 3. In the view  

of the Court:  

“There is no doubt that a woman's right to make reproductive  

choices is also a dimension of “personal liberty” as understood  

under Article 21 of the Constitution of India. It is important to  

recognise that reproductive choices can be exercised to procreate  

as well as to abstain from procreating. The crucial consideration  

is that a woman's right to privacy, dignity and bodily integrity  

should be respected. This means that there should be no  

restriction whatsoever on the exercise of reproductive choices such  

as a woman's right to refuse participation in sexual activity or  

alternatively the insistence on use of contraceptive methods.  

Furthermore, women are also free to choose birth control methods  

such as undergoing sterilisation procedures. Taken to their logical  

                                                           119 (2009) 9 SCC 1

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conclusion, reproductive rights include a woman's entitlement  

to carry a pregnancy to its full term, to give birth and to  

subsequently raise children. However, in the case of pregnant  

women there is also a “compelling State interest” in protecting the  

life of the prospective child. Therefore, the termination of a  

pregnancy is only permitted when the conditions specified in the  

applicable statute have been fulfilled. Hence, the provisions of the  

MTP Act, 1971 can also be viewed as reasonable restrictions that  

have been placed on the exercise of reproductive choices.” 120                        

                                                            (emphasis supplied)  

   The Court noted that the statute requires the consent of a guardian where the woman  

has not attained majority or is mentally ill. In the view of the Court, there is a distinction  

between mental illness and mental retardation and hence the State which was in-

charge of the welfare institution was bound to respect the personal autonomy of the  

woman.  

72 The decision in Suchita Srivastava dwells on the statutory right of a woman  

under the MTP Act to decide whether or not to consent to a termination of pregnancy  

and to have that right respected where she does not consent to termination.  The  

statutory recognition of the right is relatable to the constitutional right to make  

reproductive choices which has been held to be an ingredient of personal liberty under  

Article 21.  The Court deduced the existence of such a right from a woman’s right to  

privacy, dignity and bodily integrity.    

                                                           120 Ibid, at page 15 (para 22)

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73 In Bhavesh Jayanti Lakhani v State of Maharashtra121, this Court dealt with  

a challenge to the validity of an arrest warrant issued by a US court and a red corner  

notice issued by INTERPOL on the ground that the petitioner had, in violation of an  

interim custody order, returned to India with the child. The Court did not accept the  

submission that the CBI, by coordinating with INTERPOL had breached the  

petitioner’s right of privacy.  However, during the course of the discussion, this Court  

held as follows:    

“Right to privacy is not enumerated as a fundamental right either in  

terms of Article 21 of the Constitution of India or otherwise. It,  

however, by reason of an elaborate interpretation by this Court  

in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR  

332] was held to be an essential ingredient of “personal liberty”.”122   

“This Court, however, in Gobind v. State of M.P. upon taking an  

elaborate view of the matter in regard to right to privacy vis-à-vis  

the Madhya Pradesh Police Regulations dealing with surveillance,  

opined that the said Regulations did not violate the “procedure  

established by law”. However, a limited fundamental right to privacy  

as emanating from Articles 19(1)(a), (d) and 21 was upheld, but the  

same was held to be not absolute wherefore reasonable restrictions  

could be placed in terms of clause (5) of Article 19.”123   

   74 In Selvi v State of Karnataka124 (“Selvi”), a Bench of three judges of this Court  

dealt with a challenge to the validity of three investigative techniques:  narco-analysis,  

polygraph test (lie-detector test) and Brain Electrical Activation Profile (BEAP) on the  

ground that they implicate the fundamental rights under Articles 20(3) and 21 of the  

Constitution. The Court held that the results obtained through an involuntary  

                                                           121 (2009) 9 SCC 551  122 Ibid, at pages 584-585 (para 102)  123 Ibid, at page 585 (para 103)  124 (2010) 7 SCC 263

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administration of these tests are within the scope of a testimonial, attracting the  

protective shield of Article 20(3) of the Constitution. Chief Justice Balakrishnan  

adverted to the earlier decisions rendered in the context of privacy and noted that thus  

far, judicial understanding had stressed mostly on the protection of the body and  

physical actions induced by the state. The Court emphasised that while the right  

against self-incrimination is a component of personal liberty under Article 21, privacy  

under the constitution has a meeting point with Article 20(3) as well.  In the view of  

the Court:  

 “The theory of interrelationship of rights mandates that the right  

against self-incrimination should also be read as a component of  

“personal liberty” under Article 21. Hence, our understanding of the  

“right to privacy” should account for its intersection with Article  

20(3). Furthermore, the “rule against involuntary confessions” as  

embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872  

seeks to serve both the objectives of reliability as well as  

voluntariness of testimony given in a custodial setting. A conjunctive  

reading of Articles 20(3) and 21 of the Constitution along with the  

principles of evidence law leads us to a clear answer. We must  

recognise the importance of personal autonomy in aspects such as  

the choice between remaining silent and speaking. An individual's  

decision to make a statement is the product of a private choice and  

there should be no scope for any other individual to interfere with  

such autonomy, especially in circumstances where the person  

faces exposure to criminal charges or penalties…  

Therefore, it is our considered opinion that subjecting a person to  

the impugned techniques in an involuntary manner violates the  

prescribed boundaries of privacy. Forcible interference with a  

person's mental processes is not provided for under any statute and  

it most certainly comes into conflict with the “right against self-

incrimination”.”125  

                                                           125 Ibid, at pages 369-370 (paras 225-226)

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75    

In tracing the right to privacy under Article 20(3), as well as Article 21, the decision  

marks a definite shift away from the M P Sharma rationale. The right not to be  

compelled to speak or to incriminate oneself when accused of an offence is an  

embodiment of the right to privacy. Selvi indicates how the right to privacy can  

straddle the ambit of several constitutional rights - in that case, Articles 20(3) and 21.  

75    In Bhabani Prasad Jena v Orissa State Commission for Women126, the Court  

was considering the question whether the High Court was justified in issuing a  

direction for a DNA test of a child and the appellant who, according to the mother of  

the child, was the father. It was held that:  

“In a matter where paternity of a child is in issue before the court,  

the use of DNA test is an extremely delicate and sensitive aspect.  

One view is that when modern science gives the means of  

ascertaining the paternity of a child, there should not be any  

hesitation to use those means whenever the occasion requires. The  

other view is that the court must be reluctant in the use of such  

scientific advances and tools which result in invasion of right to  

privacy of an individual and may not only be prejudicial to the rights  

of the parties but may have devastating effect on the child.  

Sometimes the result of such scientific test may bastardise an  

innocent child even though his mother and her spouse were living  

together during the time of conception.”127   

76 In Amar Singh v Union of India128, a Bench of two judges of this Court dealt  

with a petition under Article 32 alleging that the fundamental right to privacy of the  

                                                           126 (2010) 8 SCC 633  127 Ibid, at page 642 (para 21)  128 (2011) 7 SCC 69

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petitioner was being breached by intercepting his conversations on telephone services  

provided by a service provider. The Court held:   

“Considering the materials on record, this Court is of the opinion  

that it is no doubt true that the service provider has to act on an  

urgent basis and has to act in public interest. But in a given case,  

like the present one, where the impugned communication dated 9-

11-2005 is full of gross mistakes, the service provider while  

immediately acting upon the same, should simultaneously verify the  

authenticity of the same from the author of the document. This  

Court is of the opinion that the service provider has to act as a  

responsible agency and cannot act on any communication.  

Sanctity and regularity in official communication in such  

matters must be maintained especially when the service  

provider is taking the serious step of intercepting the  

telephone conversation of a person and by doing so is  

invading the privacy right of the person concerned and which  

is a fundamental right protected under the Constitution, as has  

been held by this Court.”129  (emphasis supplied)  

77 In Ram Jethmalani v Union of India130 (“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:  

“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  

                                                           129 Ibid, at page 84 (para 39)  130 (2011) 8 SCC 1

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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…  

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.”131 (emphasis supplied)  

The Court held that while the State could access details of the bank accounts of  

citizens as an incident of its power to investigate and prosecute crime, this would not  

enable a private citizen to compel a citizen to reveal bank accounts to the public at  

large.  

                                                           131 Ibid, at pages 35-36 (paras 83-84)

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78    

78 In Sanjoy Narayan v High Court of Allahabad132, the two-judge Bench dealt  

with a contempt petition in respect of publication of an incorrect report in a newspaper  

which tarnished the image of the Chief Justice of a High Court. The Court made the  

following observations:  

“The unbridled power of the media can become dangerous if check  

and balance is not inherent in it. The role of the media is to  

provide to the readers and the public in general with  

information and views tested and found as true and correct.  

This power must be carefully regulated and must reconcile with  

a person's fundamental right to privacy.”133 (emphasis supplied)  

79 In Ramlila Maidan Incident v Home Secretary, Union of India134, Justice B  

S Chauhan in a concurring judgment held that:  

“Right to privacy has been held to be a fundamental right of the  

citizen being an integral part of Article 21 of the Constitution of India  

by this Court. Illegitimate intrusion into privacy of a person is not  

permissible as right to privacy is implicit in the right to life and liberty  

guaranteed under our Constitution. Such a right has been extended  

even to woman of easy virtues as she has been held to be entitled  

to her right of privacy. However, right of privacy may not be absolute  

and in exceptional circumstance particularly surveillance in  

consonance with the statutory provisions may not violate such a  

right.”135  

In the view of the Court, privacy and dignity of human life have “always been  

considered a fundamental human right of every human being” like other constitutional  

values such as free speech.  We must also take notice of the construction placed by  

                                                           132 (2011) 13 SCC 155  133 Ibid, at page 156 (para 6)  134 (2012) 5 SCC 1  135 Ibid, at pages 119-120 (para 312)

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79    

the judgment on the decision in Kharak Singh as having “held that the right to privacy  

is a part of life under Article 21 of the Constitution” and which was reiterated in PUCL.    

80 The judgment of a Bench of two judges of this Court in Bihar Public Service  

Commission v Saiyed Hussain Abbas Rizwi136 dealt with the provisions of Section  

8(1)(g) of the Right to Information Act, 2005. A person claiming to be a public-spirited  

citizen sought information under the statute from the Bihar Public Service Commission  

on a range of matters relating to interviews conducted by it on two days. The  

commission disclosed the information save and except for the names of the interview  

board. The High Court directed disclosure. Section 8(1)(g) provides an exemption  

from disclosure of information of the following nature:   

“information, the disclosure of which would endanger the life or  

physical safety of any person or identify the source of information  

or assistance given in confidence for law enforcement and security  

purposes.”   

Justice Swatanter Kumar, speaking for the Court, held thus:   

“Certain matters, particularly in relation to appointment, are  

required to be dealt with great confidentiality. The information may  

come to knowledge of the authority as a result of disclosure by  

others who give that information in confidence and with complete  

faith, integrity and fidelity. Secrecy of such information shall be  

maintained, thus, bringing it within the ambit of fiduciary capacity.  

Similarly, there may be cases where the disclosure has no  

relationship to any public activity or interest or it may even  

cause unwarranted invasion of privacy of the individual. All  

these protections have to be given their due implementation as they  

spring from statutory exemptions. It is not a decision simpliciter  

between private interest and public interest. It is a matter  

                                                           136 (2012) 13 SCC 61

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80    

where a constitutional protection is available to a person with  

regard to the right to privacy. Thus, the public interest has to be  

construed while keeping in mind the balance factor between right to  

privacy and right to information with the purpose sought to be  

achieved and the purpose that would be served in the larger public  

interest, particularly when both these rights emerge from the  

constitutional values under the Constitution of India.”137                                                 

(emphasis supplied)  

Significantly, though the Court was construing the text of a statutory exemption  

contained in Section 8, it dwelt on the privacy issues involved in the disclosure of  

information furnished in confidence by adverting to the constitutional right to privacy.   

 81 The decision Lillu @Rajesh v State of Haryana138 emphasized the right of  

rape survivors to privacy, physical and mental integrity and dignity. The Court held  

thus:  

“In view of International Covenant on Economic, Social, and  

Cultural Rights 1966; United Nations Declaration of Basic Principles  

of Justice for Victims of Crime and Abuse of Power 1985, rape  

survivors are entitled to legal recourse that does not retraumatize  

them or violate their physical or mental integrity and dignity. They  

are also entitled to medical procedures conducted in a manner that  

respects their right to consent. Medical procedures should not be  

carried out in a manner that constitutes cruel, inhuman, or  

degrading treatment and health should be of paramount  

consideration while dealing with gender-based violence. The  

State is under an obligation to make such services available to  

survivors of sexual violence. Proper measures should be  

taken to ensure their safety and there should be no arbitrary or  

unlawful interference with his privacy.”139   (emphasis supplied)  

                                                           137 Ibid, at page 74 (para 23)  138 (2013) 14 SCC 643  139 Ibid, at page 648 (para 13)

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81    

82 In Thalappalam Service Cooperative Bank Limited v State of Kerala140,  

another Bench of two judges considered the correctness of a decision of the Kerala  

High Court which upheld a circular issued by the Registrar of Cooperative Societies.  

By the circular all cooperative institutions under his administrative control were  

declared to be public authorities within the meaning of Section 2(h) of the Right to  

Information Act, 2005. Section 8(j) contains an exemption from the disclosure of  

personal information which has no relationship to any public activity or interest, or  

which would cause “unwarranted invasion of the privacy of the individual” unless the  

authority is satisfied that the larger public interest justifies its disclosure. This Court  

observed that the right to privacy has been recognized as a part of Article 21 of the  

Constitution and the statutory provisions contained in Section 8(j) of the RTI Act have  

been enacted by the legislature in recognition of the constitutional protection of  

privacy. The Court held thus:   

“The right to privacy is also not expressly guaranteed under the  

Constitution of India. However, the Privacy Bill, 2011 to provide for  

the right to privacy to citizens of India and to regulate the collection,  

maintenance and dissemination of their personal information and  

for penalisation for violation of such rights and matters connected  

therewith, is pending. In several judgments including Kharak  

Singh v. State of U.P .[AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , R.  

Rajagopal v. State of T.N. [(1994) 6 SCC 632] , People's Union for  

Civil Liberties v. Union of India [(1997) 1 SCC 301] and State of  

Maharashtra v. Bharat Shanti Lal Shah [(2008) 13 SCC 5] this  

Court has recognised the right to privacy as a fundamental right  

emanating from Article 21 of the Constitution of India.”141   

“Recognising the fact that the right to privacy is a sacrosanct facet  

of Article 21 of the Constitution, the legislation has put a lot of  

                                                           140 (2013) 16 SCC 82  141 Ibid, at page 112 (para 57)

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82    

safeguards to protect the rights under Section 8(j), as already  

indicated.”142      

This Court held that on facts the cooperative societies were not public authorities and  

the decision under challenge was quashed.  

83 In Manoj Narula v Union of India143, a Constitution Bench of this Court was  

hearing a petition filed in the public interest complaining of the increasing  

criminalization of politics. Dealing with the provisions of Article 75(1) of the  

Constitution, Justice Dipak Misra, while explaining the doctrine of “constitutional  

implications”, considered whether the Court could read a disqualification into the  

provisions made by the Constitution in addition to those which have been provided by  

the legislature.  In that context, the leading judgment observes:  

“In this regard, inclusion of many a facet within the ambit of Article  

21 is well established. In R. Rajagopal v. State of T.N. [(1994) 6  

SCC 632] , right to privacy has been inferred from Article 21.  

Similarly, in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 :  

1994 SCC (Cri) 1172 : AIR 1994 SC 1349] , inherent rights under  

Articles 21 and 22 have been stated. Likewise, while dealing with  

freedom of speech and expression and freedom of press, the Court,  

in Romesh Thappar v. State of Madras [AIR 1950 SC 124 : (1950)  

51 Cri LJ 1514] , has observed that freedom of speech and  

expression includes freedom of propagation of ideas…  

There is no speck of doubt that the Court has applied the doctrine  

of implication to expand the constitutional concepts, but the context  

in which the horizon has been expanded has to be borne in mind…  

                                                           142 Ibid, at page 114 (para 64)  143 (2014) 9 SCC 1

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83    

At this juncture, it is seemly to state that the principle of implication  

is fundamentally founded on rational inference of an idea from the  

words used in the text…  

Any proposition that is arrived at taking this route of interpretation  

must find some resting pillar or strength on the basis of certain  

words in the text or the scheme of the text.  In the absence of that,  

it may not be permissible for a court to deduce any proposition as  

that would defeat the legitimacy of reasoning.  A proposition can be  

established by reading a number of articles cohesively, for that will  

be in the domain of substantive legitimacy.”144 (emphasis supplied)  

 84 In National Legal Services Authority v Union of India145 (“NALSA”), a  

Bench of two judges, while dealing with the rights of transgenders, adverted to  

international conventions acceded to by India including the UDHR and ICCPR.  

Provisions in these conventions which confer a protection against arbitrary and  

unlawful interference with a person’s privacy, family and home would, it was held, be  

read in a manner which harmonizes the fundamental rights contained in Articles 14,  

15, 19 and 21 with India’s international obligations. Justice K S Radhakrishnan held  

that:  

“Gender identity, therefore, lies at the core of one's personal  

identity, gender expression and presentation and, therefore, it will  

have to be protected under Article 19(1)(a) of the Constitution of  

India. A transgender's personality could be expressed by the  

transgender's behaviour and presentation. State cannot prohibit,  

restrict or interfere with a transgender's expression of such  

personality, which reflects that inherent personality. Often the State  

and its authorities either due to ignorance or otherwise fail to digest  

the innate character and identity of such persons. We, therefore,  

hold that values of privacy, self-identity, autonomy and personal  

integrity are fundamental rights guaranteed to members of the  

transgender community under Article 19(1)(a) of the Constitution of  

                                                           144 Ibid, at pages 47-48 (paras 69-70)  145  (2014) 5 SCC 438

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84    

India and the State is bound to protect and recognise those  

rights.”146  

Explaining the ambit of Article 21, the Court noted:  

“Article 21 is the heart and soul of the Indian Constitution, which  

speaks of the rights to life and personal liberty. Right to life is one  

of the basic fundamental rights and not even the State has the  

authority to violate or take away that right. Article 21 takes all those  

aspects of life which go to make a person's life meaningful. Article  

21 protects the dignity of human life, one's personal autonomy,  

one's right to privacy, etc. Right to dignity has been recognised to  

be an essential part of the right to life and accrues to all persons on  

account of being humans. In Francis Coralie Mullin v. UT of  

Delhi[(1981) 1 SCC 608 : 1981 SCC (Cri) 212] (SCC pp. 618-19,  

paras 7 and 8), this Court held that the right to dignity forms an  

essential part of our constitutional culture which seeks to ensure the  

full development and evolution of persons and includes “expressing  

oneself in diverse forms, freely moving about and mixing and  

comingling with fellow human beings…147  

Article 21, as already indicated, guarantees the protection of  

“personal autonomy” of an individual. In Anuj Garg v. Hotel Assn. of  

India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held  

that personal autonomy includes both the negative right of not to be  

subject to interference by others and the positive right of individuals  

to make decisions about their life, to express themselves and to  

choose which activities to take part in. Self-determination of gender  

is an integral part of personal autonomy and self-expression and  

falls within the realm of personal liberty guaranteed under Article 21  

of the Constitution of India.148”  

 Dr Justice A K Sikri wrote a lucid concurring judgment.  

                                                           146 Ibid, at page 490 (para 72)  147 Ibid, at page 490 (para 73)  148 Ibid, at page 491 (para 75)

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85    

NALSA indicates the rationale for grounding of a right to privacy in the protection of  

gender identity within Article 15. The intersection of Article 15 with Article 21 locates  

a constitutional right to privacy as an expression of individual autonomy, dignity and  

identity. NALSA indicates that the right to privacy does not necessarily have to fall  

within the ambit of any one provision in the chapter on fundamental rights. Intersecting  

rights recognise the right to privacy. Though primarily, it is in the guarantee of life and  

personal liberty under Article 21 that a constitutional right to privacy dwells, it is  

enriched by the values incorporated in other rights which are enumerated in Part III of  

the Constitution.   

85 In ABC v The State (NCT of Delhi)149, the Court dealt with the question  

whether it is imperative for an unwed mother to specifically notify the putative father  

of the child of her petition for appointment as guardian of her child. It was stated by  

the mother of the child that she does not want the future of her child to be marred by  

any controversy regarding his paternity, which would indubitably result should the  

father refuse to acknowledge the child as his own. It was her contention that her own  

fundamental right to privacy will be violated if she is compelled to disclose the name  

and particulars of the father of her child. Looking into the interest of the child, the  

Bench directed that “if a single parent/unwed mother applies for the issuance of a Birth  

Certificate for a child born from her womb, the Authorities concerned may only require  

                                                           149 (2015) 10 SCC 1

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86    

her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate,  

unless there is a Court direction to the contrary”150.  

86 While considering the constitutional validity of the Constitution (Ninety-Ninth  

Amendment) Act, 2014 which enunciated an institutional process for the appointment  

of judges, the concurring judgment of Justice Madan B Lokur in Supreme Court  

Advocates on Record Association v Union of India151 dealt with privacy issues  

involved if disclosures were made about a candidate under consideration for  

appointment as a Judge of the Supreme Court or High Court. Dealing with the right to  

know of the general public on the one hand and the right to privacy on the other hand,  

Justice Lokur noted that the latter is an “implicit fundamental right that all people  

enjoy”. Justice Lokur observed thus:    

“The balance between transparency and confidentiality is very  

delicate and if some sensitive information about a particular person  

is made public, it can have a far-reaching impact on his/her  

reputation and dignity. The 99th Constitution Amendment Act and  

the NJAC Act have not taken note of the privacy concerns of an  

individual. This is important because it was submitted by the  

learned Attorney General that the proceedings of NJAC will be  

completely transparent and any one can have access to information  

that is available with NJAC. This is a rather sweeping  

generalization which obviously does not take into account the  

privacy of a person who has been recommended for  

appointment, particularly as a Judge of the High Court or in the  

first instance as a Judge of the Supreme Court. The right to  

know is not a fundamental right but at best it is an implicit  

fundamental right and it is hedged in with the implicit  

fundamental right to privacy that all people enjoy. The balance  

between the two implied fundamental rights is difficult to maintain,  

                                                           150 Ibid, at page 18 (para 28)  151 (2016) 5 SCC 1

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but the 99th Constitution Amendment Act and the NJAC Act do not  

even attempt to consider, let alone achieve that balance.”152                  

(emphasis supplied)                             

87 A comprehensive analysis of precedent has been necessary because it  

indicates the manner in which the debate on the existence of a constitutional right to  

privacy has progressed. The content of the constitutional right to privacy and its  

limitations have proceeded on a case to case basis, each precedent seeking to build  

upon and follow the previous formulations. The doctrinal foundation essentially rests  

upon the trilogy of M P Sharma – Kharak Singh – Gobind upon which subsequent  

decisions including those in Rajagopal, PUCL, Canara Bank, Selvi and NALSA have  

contributed. Reconsideration of the doctrinal basis cannot be complete without  

evaluating what the trilogy of cases has decided.   

88 M P Sharma dealt with a challenge to a search on the ground that the statutory  

provision which authorized it, violated the guarantee against self-incrimination in  

Article 20(3). In the absence of a specific provision like the Fourth Amendment to the  

US Constitution in the Indian Constitution, the Court answered the challenge by its  

ruling that an individual who is subject to a search during the course of which material  

is seized does not make a voluntary testimonial statement of the nature that would  

attract Article 20(3). The Court distinguished a compulsory search from a voluntary  

statement of disclosure in pursuance of a notice issued by an authority to produce  

                                                           152 Ibid, at page 676 (para 953)

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documents. It was the former category that was held to be involved in a compulsive  

search, which the Court held would not attract the guarantee against self-

incrimination. The judgment, however, proceeded further to hold that in the absence  

of the right to privacy having been enumerated in the Constitution, a provision like the  

Fourth Amendment to the US Constitution could not be read into our own. The  

observation in regard to the absence of the right to privacy in our Constitution was  

strictly speaking, not necessary for the decision of the Court in M P Sharma and the  

observation itself is no more than a passing observation. Moreover, the decision does  

not adjudicate upon whether privacy could be a constitutionally protected right under  

any other provision such as Article 21 or under Article 19.   

89 Kharak Singh does not contain a reference to M P Sharma. The decision of  

the majority in Kharak Singh is essentially divided into two parts; the first dealing with  

the validity of a regulation for nocturnal domiciliary visits (which was struck down) and  

the second dealing with the rest of the regulation (which was upheld). The decision  

on the first part, which dealt with Regulation 236(b) conveys an inescapable  

impression that the regulation invaded the sanctity of the home and was a violation of  

ordered liberty. Though the reasoning of the Court does not use the expression  

‘privacy’, it alludes to the decision of the US Supreme Court in Wolf v Colorado, which  

deals with privacy. Besides, the portion extracted in the judgment has a reference to  

privacy specifically at two places. While holding domiciliary visits at night to be invalid,  

the Court drew sustenance from the right to life under Article 21 which means

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something more than a mere animal existence. The right under Article 21 includes the  

enjoyment of those faculties which render the right meaningful. Hence, the first part  

of the decision in Kharak Singh represents an amalgam of life, personal liberty and  

privacy. It protects interests which are grounded in privacy under the rubric of liberty.  

The difficulty in construing the decision arises because in the second part of its  

decision, the majority upheld the rest of the regulation and observed (while doing so)  

that there is an absence of a protected right to privacy under the Constitution. These  

observations in the second part are at variance with those dealing with the first. The  

view about the absence of a right to privacy is an isolated observation which cannot  

coexist with the essential determination rendered on the first aspect of the regulation.  

Subsequent Benches of this Court in the last five decades and more, have attempted  

to make coherent doctrine out of the uneasy coexistence between the first and the  

second parts of the decision in Kharak Singh. Several of them rely on the protection  

of interests grounded in privacy in the first part, under the conceptual foundation of  

ordered liberty.  

90 Gobind proceeded on the basis of an assumption and explains what according  

to the Court would be the content of the right to privacy if it is held to be a constitutional  

right. Gobind underlines that the right would be intrinsic to ordered liberty and would  

cover intimate matters such as family, marriage and procreation. Gobind, while  

recognizing that the right would not be absolute and would be subject to the regulatory  

power of the State, conditioned the latter on the existence of a compelling state

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interest. The decision also brings in the requirement of a narrow tailoring of the  

regulation to meet the needs of a compelling interest. The Bench which decided  

Gobind adverted to the decision in Kharak Singh (though not M P Sharma).  Be that  

as it may, Gobind has proceeded on the basis of an assumption that the right to  

privacy is a constitutionally protected right in India. Subsequent decisions of this Court  

have treated the formulation of a right to privacy as one that emerges out of Kharak  

Singh or Gobind (or both). Evidently, it is the first part of the decision in Kharak  

Singh which is construed as having recognized a constitutional entitlement to privacy  

without reconciling the second part which contains a specific observation on the  

absence of a protected constitutional right to privacy in the Constitution. Succeeding  

Benches of smaller strength were not obviously in a position to determine the  

correctness of the M P Sharma and Kharak Singh formulations. They had to weave  

a jurisprudence of privacy as new challenges emerged from a variety of sources: wire-

tapping, narco-analysis, gender based identity, medical information, informational  

autonomy and other manifestations of privacy. As far as the decisions following upon  

Gobind are concerned, it does emerge that the assumptions which find specific  

mention in several parts of the decision were perhaps not adequately placed in  

perspective. Gobind has been construed by subsequent Benches as affirming the  

right to privacy.   

91 The right to privacy has been traced in the decisions which have been rendered  

over more than four decades to the guarantee of life and personal liberty in Article 21

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and the freedoms set out in Article 19. In addition, India’s commitment to a world order  

founded on respect for human rights has been noticed along with the specific articles  

of the UDHR and the ICCPR which embody the right to privacy.153 In the view of this  

Court, international law has to be construed as a part of domestic law in the absence  

of legislation to the contrary and, perhaps more significantly, the meaning of  

constitutional guarantees must be illuminated by the content of international  

conventions to which India is a party. Consequently, as new cases brought new issues  

and problems before the Court, the content of the right to privacy has found  

elaboration in these diverse contexts. These would include telephone tapping (PUCL),  

prior restraints on publication of material on a death row convict (Rajagopal),  

inspection and search of confidential documents involving the banker - customer  

relationship (Canara Bank), disclosure of  HIV status (Mr X v Hospital Z), food  

preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of  

pregnancy (Suchita Srivastava), scientific tests in criminal investigation (Selvi),  

disclosure of bank accounts held overseas (Ram Jethmalani) and the right of  

transgenders (NALSA). Early cases dealt with police regulations authorising  

intrusions on liberty, such as surveillance. As Indian society has evolved, the assertion  

of the right to privacy has been considered by this Court in varying contexts replicating  

the choices and autonomy of the individual citizen.  

                                                           153 See Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation, Eastern  Book Company (2014), for a comprehensive account on the right to privacy and privacy laws in India.

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92 The deficiency, however, is in regard to a doctrinal formulation of the basis on  

which it can be determined as to whether the right to privacy is constitutionally  

protected. M P Sharma need not have answered the question; Kharak Singh dealt  

with it in a somewhat inconsistent formulation while Gobind rested on assumption. M  

P Sharma being a decision of eight judges, this Bench has been called upon to decide  

on the objection of the Union of India to the existence of such a right in the first place.  

I The Indian Constitution    

 Preamble   

93 The Preamble to the Constitution postulates that the people of India have  

resolved to constitute India into a Republic which (among other things) is Sovereign  

and Democratic and to secure to all its citizens:  

“JUSTICE, social, economic and political;  

LIBERTY of thought, expression, belief, faith and worship;  

EQUALITY of status and of opportunity; and to promote among  

them all  

FRATERNITY assuring the dignity of the individual and the unity of  

the Nation;…”   

94 In Sajjan Singh v State of Rajasthan154, Justice Mudholkar alluded to the fact  

that the Preamble to our Constitution is “not of the common run” as is the Preamble  

in a legislative enactment but was marked both by a “stamp of deep deliberation” and  

                                                           154 (1965) 1 SCR 933

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precision. This was suggestive, in the words of the Court, of the special significance  

attached to the Preamble by the framers of the Constitution.   

95 In Kesavananda Bharati v State of Kerala155 (“Kesavananda Bharati”),  

Chief Justice Sikri noticed that the Preamble is a part of the Constitution.  The  

Preamble emphasises the need to secure to all citizens justice, liberty, equality and  

fraternity. Together they constitute the founding faith or the blueprint of values  

embodied with a sense of permanence in the constitutional document. The Preamble  

speaks of securing liberty of thought, expression, belief, faith and worship.  Fraternity  

is to be promoted to assure the dignity of the individual.  The individual lies at the core  

of constitutional focus and the ideals of justice, liberty, equality and fraternity animate  

the vision of securing a dignified existence to the individual.  The Preamble envisions  

a social ordering in which fundamental constitutional values are regarded as  

indispensable to the pursuit of happiness. Such fundamental values have also found  

reflection in the foundational document of totalitarian regimes in other parts of the  

world. What distinguishes India is the adoption of a democratic way of life, founded  

on the rule of law. Democracy accepts differences of perception, acknowledges  

divergences in ways of life, and respects dissent.   

                                                           155 (1973) 4  SCC 225

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Jurisprudence on dignity  

96 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).   

97 In Prem Shankar Shukla v Delhi Administration156, which arose from the  

handcuffing of the prisoners, Justice Krishna Iyer, speaking for a three-judge Bench  

of this Court held:  

 “…the guarantee of human dignity, which forms part of our  

constitutional culture, and the positive provisions of Articles 14, 19  

and 21 spring into action when we realise that to manacle man is  

more than to mortify him; it is to dehumanize him and, therefore, to  

                                                           156 (1980) 3 SCC 526

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95    

violate his very personhood, too often using the mask of  

'dangerousness' and security…157   

The Preamble sets the humane tone and temper of the Founding  

Document and highlights Justice, Equality and the dignity of the  

individual. 158”   

 98 A Bench of two judges in Francis Coralie Mullin v Union Territory of Delhi159  

(“Francis Coralie”) while construing the entitlement of a detenue under the  

Conservation of Foreign Exchange and Prevention of Smuggling Activities  

(COFEPOSA) Act, 1974 to have an interview with a lawyer and the members of his  

family held that:  

 “The fundamental right to life which is the most precious human  

right and which forms the ark of all other rights must therefore be  

interpreted in a broad and expansive spirit so as to invest it with  

significance and vitality which may endure for years to come and  

enhance the dignity of the individual and the worth of the human  

person…160   

…the right to life enshrined in Article 21 cannot be restricted to mere  

animal existence. It means something much more than just physical  

survival.161   

…We think that the right to life includes the right to live with human  

dignity and all that goes along with it, namely, the bare necessaries  

of life such as adequate nutrition, clothing and shelter and facilities  

for reading, writing and expressing one-self in diverse forms, freely  

moving about and mixing and commingling with fellow human  

beings…Every act which offends against or impairs human dignity  

would constitute deprivation pro tanto of this right to live and it would  

have to be in accordance with reasonable, fair and just procedure  

                                                           157 Ibid, at pages 529-530 (para 1)  158 Ibid, at page 537 (para 21)  159 (1981) 1 SCC 608  160 Ibid, at page 618 (para 6)  161 Ibid, at page 618 (para 7)

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established by law  which stands the test of other fundamental  

rights…162”  

99 In Bandhua Mukti Morcha v Union of India163, a Bench of three judges of this  

Court while dealing with individuals who were living in bondage observed that:    

 “…This right to live with human dignity enshrined in Article  

21 derives its life breath from the Directive Principles of  

State Policy and particularly Clause (e) and (f) of “Article 39  

and Arts. 41 and 42 and at the least, therefore, it must  

include protection of the health and strength of the workers,  

men and women, and of the tender age of children against  

abuse, opportunities and facilities for children to develop in  

a healthy manner and in conditions of freedom and dignity,  

educational facilities, just and humane conditions of work  

and maternity relief. These are the minimum requirements  

which must exist in order to enable a person to live with  

human dignity, and nor State - neither the Central  

Government - has the right to take any action which will  

deprive a person of the enjoyment of these basic  

essentials.”164  

100 Dealing with an allegation that activists of an organization were arrested and  

paraded throughout the town by the police and were beaten up in police custody, this  

Court in Khedat Mazdoor Chetna Sangath v State of M P165 held that:    

 “It is, therefore, absolutely essential in the interest of justice,  

human dignity and democracy that this Court must  

intervene; order an investigation determine the correct facts  

and take strongest possible action against the respondents  

who are responsible for these atrocities…166   

                                                           162 Ibid, at pages 618-619 (para 8)  163 (1984) 3 SCC 161  164 Ibid, at page 183 (para 10)  165 (1994) 6 SCC 260   166 Ibid, at pages 262-263 (para 10)

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If dignity or honor vanishes what remains of life. 167”   

101 Human dignity was construed in M Nagaraj v Union of India168 by a  

Constitution Bench of this Court to be intrinsic to and inseparable from human  

existence.  Dignity, the Court held, is not something which is conferred and which can  

be taken away, because it is inalienable:    

 “The rights, liberties and freedoms of the individual are not  

only to be protected against the State, they should be  

facilitated by it… It is the duty of the State not only to  

protect the human dignity but to facilitate it by taking  

positive steps in that direction. No exact definition of  

human dignity exists. It refers to the intrinsic value of  

every human being, which is to be respected. It cannot  

be taken away. It cannot give. It simply is. Every human  

being has dignity by virtue of his existence…169   

India is constituted into a sovereign, democratic republic to  

secure to all its citizens, fraternity assuring the dignity of the  

individual and the unity of the nation. The sovereign,  

democratic republic exists to promote fraternity and the  

dignity of the individual citizen and to secure to the citizens  

certain rights. This is because the objectives of the State  

can be realized only in and through the individuals.  

Therefore, rights conferred on citizens and non-citizens are  

not merely individual or personal rights. They have a large  

social and political content, because the objectives of the  

Constitution cannot be otherwise realized.170” (emphasis  

supplied)  

                                                           167 Ibid, at pages 271 (para 37)  168 (2006) 8 SCC 212  169 Ibid, at page 243-244 (para 26)  170 Ibid, at pages 247-248 (para 42)

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98    

102 In Maharashtra University of Health Sciences v Satchikitsa Prasarak  

Mandal171, this Court held that the dignity of the individual is a core constitutional  

concept.  In Selvi, this Court recognised that:    

“…we must recognize that a forcible intrusion into a person's  

mental processes is also an affront to human dignity and  

liberty, often with grave and long-lasting  

consequences…”172    

103 In Dr Mehmood Nayyar Azam v State of Chhattisgarh173, this Court noted  

that when dignity is lost, life goes into oblivion.  The same emphasis on dignity finds  

expression in the decision in NALSA.  

104 The same principle was more recently reiterated in Shabnam v Union of  

India174 in the following terms:  

“This right to human dignity has many elements. First and foremost,  

human dignity is the dignity of each human being ‘as a human  

being’. Another element, which needs to be highlighted, in the  

context of the present case, is that human dignity is infringed if a  

person’s life, physical or mental welfare is alarmed. It is in this  

sense torture, humiliation, forced labour, etc. all infringe on human  

dignity. It is in this context many rights of the accused derive from  

his dignity as a human being.”175  

                                                           171 (2010) 3 SCC 786  172 Ibid, at page 376 (para 244)  173 (2012) 8 SCC 1   174 (2015) 6 SCC 702  175 Ibid, at page 713 (para 14)

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105 The recent decision in Jeeja Ghosh v Union of India176 construed the  

constitutional protection afforded to human dignity. The Court observed:    

“…human dignity is a constitutional value and a constitutional goal.  

What are the dimensions of constitutional value of human dignity?  

It is beautifully illustrated by Aharon Barak177 (former Chief Justice  

of the Supreme Court of Israel) in the following manner:  

“The constitutional value of human dignity has a  

central normative role. Human dignity as a  

constitutional value is the factor that unites the human  

rights into one whole. It ensures the normative unity of  

human rights. This normative unity is expressed in the  

three ways: first, the value of human dignity serves as  

a normative basis for constitutional rights set out in the  

constitution; second, it serves as an interpretative  

principle for determining the scope of constitutional  

rights, including the right to human dignity; third, the  

value of human dignity has an important role in  

determining the proportionality of a statute limiting a  

constitutional right.”178    

106 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  

                                                           176 (2016) 7 SCC 761  177 Aharon Barak, Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge University  Press (2015)  178 Supra Note 176, at page 792 (para 37)

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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.   

107 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.     

Fundamental Rights cases  

108 In Golak Nath v State of Punjab179, there was a challenge to the Punjab  

Security of Land Tenures Act, 1953 and to the Mysore Land Reforms Act (as  

amended) upon their inclusion in the Ninth Schedule to the Constitution.   

Chief Justice Subba Rao dwelt on the rule of law and its purpose in ensuring that  

every authority constituted by the Constitution is subject to it and functions within its  

                                                           179 (1967) 2 SCR 762

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parameters.  One of the purposes of constraining governmental power was to shield  

the fundamental freedoms against legislative majorities.  This thought is reflected in  

the following extract from the judgment of Chief Justice Subba Rao:  

“…But, having regard to the past history of our country, it could not  

implicitly believe the representatives of the people, for uncontrolled  

and unrestricted power might lead to an authoritarian State. It,  

therefore, preserves the natural rights against the State  

encroachment and constitutes the higher judiciary of the State  

as the sentinel of the said rights and the balancing wheel  

between the rights, subject to social control. In short, the  

fundamental rights, subject to social control, have been  

incorporated in the rule of law…”180      (emphasis supplied)  

The learned Judge emphasised the position of the fundamental rights thus:  

“…They are the rights of the people preserved by our Constitution.  

“Fundamental Rights” are the modern name for what have  

been traditionally known as “natural rights”.  As one author  

puts: “they are moral rights which every human being everywhere  

all times ought to have simply because of the fact that in  

contradistinction with other things is rational and moral”.  They are  

the primordial rights necessary for the development of human  

personality. They are the rights which enable a man to chalk out of  

his own life in the manner he likes best…”181  (emphasis supplied)  

The fundamental rights, in other words, are primordial rights which have traditionally  

been regarded as natural rights.  In that character these rights are inseparable from  

human existence.  They have been preserved by the Constitution, this being a  

recognition of their existence even prior to the constitutional document.   

                                                           180 Ibid, at page 788  181 Ibid, at page 789

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102    

109 In Kesavananda Bharati, a Bench of 13 judges considered the nature of the  

amending power conferred by Article 368 and whether the exercise of the amending  

power was subject to limitations in its curtailment of the fundamental freedoms.  Chief  

Justice Sikri held that the fundamental rights are inalienable. In his view, the Universal  

Declaration of Human Rights had to be utilised to interpret the Constitution having  

regard to the mandate of Article 51. India, having acceded to the Universal  

Declaration, Sikri, C.J. held that the treatment of rights as inalienable must guide the  

interpretation of the Court. The Chief Justice relied upon a line of precedent holding  

these rights to be natural and inalienable and observed:  

“300. Various decisions of this Court describe fundamental rights  

as ‘natural rights’ or ‘human rights’. Some of these decisions are  

extracted below:  

“There can be no doubt that the people of India have in exercise of  

their sovereign will as expressed in the Preamble, adopted the  

democratic ideal, which assures to the citizen the dignity of the  

individual and other cherished human values as a means to the full  

evolution and expression of his personality, and in delegating to the  

legislature, the executive and the judiciary their respective powers  

in the Constitution, reserved to themselves certain fundamental  

rights so-called, I apprehend because they have been retained by  

the people and made paramount to the delegated powers, as in the  

American Model. (Per Patanjali Sastri, J., in Gopalan v. State of  

Madras. [AIR 1950 SC 27: 1950 SCR 88, 198-199 : 1950 SCJ 174]  

(Emphasis supplied).   

(ii) “That article (Article 19) enumerates certain freedoms under the  

caption ‘right to freedom’ and deals with those great and basic  

rights which are recognised and guaranteed as the natural  

rights inherent in the status of a citizen of a free country. (Per  

Patanjali Sastri, C J., in State of West Bengal v. Subodh Gopal  

Bose [AIR 1954 SC 92 : 1954 SCR 587, 596 : 1954 SCJ 127] )  

(Emphasis supplied).   

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103    

“I have no doubt that the framers of our Constitution drew the same  

distinction and classed the natural right or capacity of a citizen ‘to  

acquire, hold and dispose of property’ with other natural rights and  

freedoms inherent in the status of a free citizen and embodied them  

in Article 19(1)… (ibid, p. 597)” (Emphasis supplied).  

“For all these reasons, I am of opinion that under the scheme of the  

Constitution, all those broad and basic freedoms inherent in the  

status of a citizen as a free man are embodied and protected from  

invasion by the State under clause (1) of Article 19…” (ibid, p. 600)  

(Emphasis supplied).   

(iii) “The people, however, regard certain rights as paramount,  

because they embrace liberty of action to the individual in  

matters of private life, social intercourse and share in the  

Government of the country and other spheres. The people who  

vested the three limbs of Government with their power and  

authority, at the same time kept back these rights of citizens and  

also some times of non-citizens, and made them inviolable except  

under certain conditions. The rights thus kept back are placed in  

Part III of the Constitution, which is headed ‘Fundamental Rights’,  

and the conditions under which these rights can be abridged are  

also indicated in that Part. (Per Hidayatullah,J. in Ujjambai v. State  

of U.P. [(1963) 1 SCR 778, 926-27 : AIR 1962 SC 1621]) (Emphasis  

supplied).   

301. The High Court Allahabad has described them as follows:  

“(iv)…man has certain natural or inalienable rights and that it  

is the function of the State, in order that human liberty might  

be preserved and human personality developed, to give  

recognition and free play to those rights…suffice it to say that  

they represent a trend in the democratic thought of our age. (Motilal  

v. State of U.P.)” (Emphasis supplied).”182  

This was the doctrinal basis for holding that the fundamental rights could not be  

“amended out of existence”.  Elaborating all those features of the Constitution which  

formed a part of the basic structure, Sikri, C J held that:  

                                                           182 Supra note 155, at page 367-368 (para 300)

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“The learned Attorney-General said that every provision of the  

Constitution is essential; otherwise it would not have been put in the  

Constitution. This is true. But this does not place every provision of  

the Constitution in the same position. The true position is that every  

provision of the Constitution can be amended provided in the result  

the basic foundation and structure of the Constitution remains the  

same. The basic structure may be said to consist of the following  

features:  

(1) Supremacy of the Constitution;  

(2) Republican and Democratic form of Government;  

(3) Secular character of the Constitution;  

(4) Separation of powers between the legislature, the executive and  

the judiciary;  

(5) Federal character of the Constitution.”183  

Justices Shelat and Grover held that “[t]he dignity of the individual secured by the  

various freedoms and basic rights in Part III and the mandate to build a welfare State  

contained in Part IV”184 constituted a part of the basic structure.   

Justices Hegde and Mukherjea emphasised that the primary object before the  

Constituent Assembly were: (i) to constitute India into a sovereign, democratic  

republic and (ii) to secure its citizens the rights mentioned in it.  Hence, the learned  

Judges found it impossible to accept that the Constitution makers would have made  

a provision in the Constitution itself for the destruction of the very ideals which they  

had embodied in the fundamental rights. Hence, Parliament had no power to abrogate  

the fundamental features of the Constitution including among them “the essential  

features of the individual freedoms secured to the citizens”.   

“On a careful consideration of the various aspects of the case, we  

are convinced that the Parliament has no power to abrogate or  

                                                           183 Ibid, at page 366 (para 292)  184 Ibid, at page 454 (para 582)

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emasculate the basic elements or fundamental features of the  

Constitution such as the sovereignty of India, the democratic  

character of our polity, the unity of the country, the essential  

features of the individual freedoms secured to the citizens. Nor  

has the Parliament the power to revoke the mandate to build a  

welfare State and egalitarian society. These limitations are only  

illustrative and not exhaustive. Despite these limitations, however,  

there can be no question that the amending power is a wide power  

and it reaches every Article and every part of the Constitution. That  

power can be used to reshape the Constitution to fulfil the obligation  

imposed on the State. It can also be used to reshape the  

Constitution within the limits mentioned earlier, to make it an  

effective instrument for social good. We are unable to agree with  

the contention that in order to build a welfare State, it is  

necessary to destroy some of the human freedoms. That, at  

any rate is not the perspective of our Constitution. Our  

Constitution envisages that the State should without delay  

make available to all the citizens of this country the real  

benefits of those freedoms in a democratic way. Human  

freedoms are lost gradually and imperceptibly and their destruction  

is generally followed by authoritarian rule. That is what history has  

taught us. Struggle between liberty and power is eternal. Vigilance  

is the price that we like every other democratic society have to pay  

to safeguard the democratic values enshrined in our Constitution.  

Even the best of Governments are not averse to have more and  

more power to carry out their plans and programmes which they  

may sincerely believe to be in public interest. But a freedom once  

lost is hardly ever regained except by revolution. Every  

encroachment on freedom sets a pattern for further encroachments.  

Our constitutional plan is to eradicate poverty without  

destruction of individual freedoms.”185  (emphasis supplied)  

Justice Jaganmohan Reddy held that:  

“…Parliament cannot under Article 368 expand its power of  

amendment so as to confer on itself the power to repeal, abrogate  

the Constitution or damage, emasculate or destroy any of the  

fundamental rights or essential elements of the basic structure of  

the Constitution or of destroying the identity of the Constitution…”186  

                                                           185 Ibid, at pages 486-487 (para 666)  186 Ibid, at page 666 (para 1212)

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Justice Khanna in the course of the summation of his conclusions held, as regards  

the power of amendment, that:  

“The power of amendment under Article 368 does not include the  

power to abrogate the Constitution nor does it include the power to  

alter the basic structure or framework of the Constitution. Subject to  

the retention of the basic structure or framework of the Constitution,  

the power of amendment is plenary and includes within itself the  

power to amend the various articles of the Constitution, including  

those relating to fundamental rights as well as those which may be  

said to relate to essential features. No part of a fundamental right  

can claim immunity from amendatory process by being described  

as the essence, or core of that right. The power of amendment  

would also include within itself the power to add, alter or repeal the  

various articles.”187  

Significantly, even though Justice Mathew was in the minority, the learned Judge in  

the course of his decision observed the importance of human dignity:   

“The social nature of man, the generic traits of his physical and  

mental constitution, his sentiments of justice and the morals within,  

his instinct for individual and collective preservations, his desire for  

happiness, his sense of human dignity, his consciousness of man’s  

station and purpose in life, all these are not products of fancy but  

objective factors in the realm of existence…”188  

110 In Indira Nehru Gandhi v Raj Narain189, Justice Khanna clarified that his view  

in Kesavananda Bharati is that Parliament in the exercise of its power to amend the  

Constitution cannot destroy or abrogate the basic structure of the Constitution. No  

distinction was made in regard to the scope of the amending power relating to the  

                                                           187 Ibid, at page 824 (para 1537(vii))  188 Ibid, at pages 866-867 (para 1676)  189 (1975) 1 Suppl. SCC 1

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provisions of the fundamental rights and in respect of matters other than the  

fundamental rights:  

“…The limitation inherent in the word “amendment” according to  

which it is not permissible by amendment of the Constitution to  

change the basic structure of the Constitution was to operate  

equally on articles pertaining to fundamental rights as on other  

articles not pertaining to those rights…”190  

Justice Khanna noted that the right to property was held by him not to be a part of the  

basic structure. Justice Khanna observed that it would have been unnecessary for  

him to hold so, if none of the fundamental rights were to be a part of the basic structure  

of the Constitution.   

111 Chandrachud C J, in the course of his judgment for the Constitution Bench in  

Minerva Mills Ltd v Union of India191, traced the history of the evolution of inalienable  

rights, founded in inviolable liberties, during the course of the freedom movement and  

observed that both Parts III and IV of the Constitution had emerged as inseparably  

inter-twined, without a distinction between the negative and positive obligations of the  

state.   

The Constitution, in this view, is founded on “the bedrock of the balance between  

Parts III and IV” and to give absolute primacy to one over the other would be to disturb  

the harmony of the Constitution. In the view of the Chief Justice:  

                                                           190 Ibid, at page 115 (para 251)  191 (1980) 3 SCC 625

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“The edifice of our Constitution is built upon the concepts  crystallised in the Preamble.  We resolved to constitute ourselves  

into a Socialist State which carried with it the obligation to secure to  

our people justice – social, economic and political.  We, therefore,  

put Part IV into our Constitution containing directive principles of  

State policy which specify the socialistic goal to be achieved. We  

promised to our people a democratic polity which carries with it the  

obligation of securing to the people liberty of thought, expression,  

belief, faith and worship; equality of status and of opportunity and  

the assurance that the dignity of the individual will at all costs be  

preserved. We, therefore, put Part III in our Constitution conferring  

those rights on the people…”192  

Articles 14 and 19, the Court held, confer rights essential for the proper functioning of  

a democracy and are universally so regarded by the Universal Declaration of Human  

Rights. Withdrawing the protection of Articles 14 and 19 was plainly impermissible  

and the immunity granted by the 42nd Amendment to the Constitution to a law against  

the challenge that it violates Articles 14 or 19 (if the law is for giving effect to the  

Directive Principles) amounted to a violation of the basic structure.   

No waiver of Fundamental Rights  

112 In Behram Khurshed Pesikaka v The State of Bombay193, Chief Justice  

Mahajan, speaking for the Constitution Bench, noted the link between the  

constitutional vision contained in the Preamble and the position of the fundamental  

rights as a means to facilitate its fulfilment.  Though Part III embodies fundamental  

rights, this was construed to be part of the wider notion of securing the vision of justice  

                                                           192 Ibid, at page 654 (para 57)   193 (1955) 1 SCR 613

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of the founding fathers and, as a matter of doctrine, the rights guaranteed were held  

not to be capable of being waived.  Mahajan, CJ, observed:  

“We think that the rights described as fundamental rights are a  

necessary consequence of the declaration in the Preamble that the  

people of India have solemnly resolved to constitute India into a  

sovereign democratic republic and to secure to all its citizens  

justice, social, economic and political; liberty of thought, expression,  

belief, faith and worship; equality of status and of opportunity.   

These fundamental rights have not been put in the Constitution  

merely for individual benefit, though ultimately they come into  

operation in considering individual rights. They have been put there  

as a matter of public policy and the doctrine of waiver can have no  

application to provisions of law which have been enacted as a  

matter of constitutional policy.”194  

Privacy as intrinsic to freedom and liberty  

113 The submission that recognising the right to privacy is an exercise which would  

require a constitutional amendment and cannot be a matter of judicial interpretation is  

not an acceptable doctrinal position. The argument assumes that the right to privacy  

is independent of the liberties guaranteed by Part III of the Constitution.  There lies  

the error. The right to privacy is an element of human dignity.  The sanctity of privacy  

lies in its functional relationship with dignity. Privacy ensures that a human being can  

lead a life of dignity by securing the inner recesses of the human personality from  

unwanted intrusion.  Privacy recognises the autonomy of the individual and the right  

of every person to make essential choices which affect the course of life. In doing so  

privacy recognises that living a life of dignity is essential for a human being to fulfil the  

                                                           194 Ibid, at pages 653-654

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liberties and freedoms which are the cornerstone of the Constitution. To recognise the  

value of privacy as a constitutional entitlement and interest is not to fashion a new  

fundamental right by a process of amendment through judicial fiat. Neither are the  

judges nor is the process of judicial review entrusted with the constitutional  

responsibility to amend the Constitution.  But judicial review certainly has the task  

before it of determining the nature and extent of the freedoms available to each person  

under the fabric of those constitutional guarantees which are protected. Courts have  

traditionally discharged that function and in the context of Article 21 itself, as we have  

already noted, a panoply of protections governing different facets of a dignified  

existence has been held to fall within the protection of Article 21.  

114 In Olga Tellis v Bombay Municipal Corporation195, Chandrachud C J, while  

explaining the ambit of Article 21 found a rationale for protecting the right to livelihood  

as an incident of the right to life. For, as the Court held, deprivation of livelihood would  

result in the abrogation of the right to life:  

“148. The sweep of the right to life conferred by Article 21 is wide  

and far-reaching.  It does not mean merely that life cannot be  

extinguished or taken away as, for example, by the imposition and  

execution of the death sentence, except according to procedure  

established by law.  That is but one aspect of the right to life. An  

equally important facet of that right is the right to livelihood because,  

no person can live without the means of living, that is, the means of  

livelihood. If the right to livelihood is not treated as a part of the  

constitutional right to life, the easiest way of depriving a person of  

his right to life would be to deprive him of his means of livelihood to  

the point of abrogation. Such deprivation would not only denude the  

                                                           195 (1985) 3 SCC 545

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life of its effective content and meaningfulness but it would make  

life impossible to live. And yet, such deprivation would not have to  

be in accordance with the procedure established by law, if the right  

to livelihood is not regarded as a part of the right to life.  That, which  

alone makes it possible to live, leave aside what makes life liveable,  

must be deemed to be an integral component of the right to life.  

Deprive a person of his right to livelihood and you shall have  

deprived him of his life…”196    

115 In Unnikrishnan v State of Andhra Pradesh197, Justice Jeevan Reddy,  

speaking for this Court, held that though the right to education (as the Constitution  

then stood) was not “stated expressly as a fundamental right” in Part III, that would  

not militate against its being protected under the rubric of life under Article 21. These  

decisions have been ultimately guided by the object of a Constitutional Court which  

must be to expand the boundaries of fundamental human freedoms rather than to  

attenuate their content through a constricted judicial interpretation  In  Maneka,  it has  

been stated that:  

“The attempt of the court should be to expand the reach and ambit  

of the fundamental rights rather than attenuate their meaning and  

content by process of judicial construction…  

“personal liberty” in Article 21 is of the widest amplitude.”198  

116 Now, would this Court in interpreting the Constitution freeze the content of  

constitutional guarantees and provisions to what the founding fathers perceived?  The  

Constitution was drafted and adopted in a historical context.  The vision of the  

founding fathers was enriched by the histories of suffering of those who suffered  

                                                           196 Ibid, at page 572 (para 32)  197 (1993) 1 SCC 645  198 Maneka (Supra note 5), at page 280 (para 5)

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oppression and a violation of dignity both here and elsewhere.  Yet, it would be difficult  

to dispute that many of the problems which contemporary societies face would not  

have been present to the minds of the most perspicacious draftsmen. No generation,  

including the present, can have a monopoly over solutions or the confidence in its  

ability to foresee the future. As society evolves, so must constitutional doctrine.  The  

institutions which the Constitution has created must adapt flexibly to meet the  

challenges in a rapidly growing knowledge economy.  Above all, constitutional  

interpretation is but a process in achieving justice, liberty and dignity to every citizen.   

117 Undoubtedly, there have been aberrations.  In the evolution of the doctrine in  

India, which places the dignity of the individual and freedoms and liberties at the  

forefront, there have been a few discordant notes. Two of them need attention.   

 Discordant Notes   

(i) ADM Jabalpur   

118 In ADM Jabalpur v Shivakant Shukla199 (“ADM Jabalpur”), the issue before  

this Court was whether an order issued by the President under Article 359(1) of the  

Constitution suspends the right of every person to move any Court for the enforcement  

of the right to personal liberty under Article 21 upon being detained under a law  

providing for preventive detention.  The submission of the detenues in this Court was  

                                                           199 (1976) 2 SCC 521

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that the suspension of the remedy to enforce Article 21 does not automatically entail  

suspension of the right or the rule of law and that even during an emergency the rule  

of law could not be suspended. A majority of four judges of this Court (Justice H R  

Khanna dissenting) held that:  

“Liberty is confined and controlled by law, whether common law or  

statute. It is in the words of Burke a regulated freedom. It is not an  

abstract or absolute freedom. The safeguard of liberty is in the good  

sense of the people and in the system of representative and  

responsible government which has been evolved. If extraordinary  

powers are given, they are given because the emergency is  

extraordinary, and are limited to the period of the emergency.”200  

Dealing with the issue as to whether Article 21 is the sole repository of the right to life,  

Ray C J, observed that where any right which existed before the commencement of  

the Constitution has been incorporated in Part III, the common law right would not  

exist under the Constitution.  In a concurring judgment Justice Beg held that while  

adopting the Constitution, there was a notional surrender by the people of India of the  

control over these rights to a sovereign republic and it is only the Constitution which  

is supreme and which can confer rights and powers. There was, in this view, a notional  

surrender of individual freedom. Justice Beg held that:  

“The whole object of guaranteed fundamental rights is to make  

those basic aspects of human freedom, embodied in fundamental  

rights, more secure than others not so selected. In thus recognising  

and declaring certain basic aspects of rights as fundamental by the  

Constitution of the country, the purpose was to protect them against  

undue encroachments upon them by the legislative, or executive,  

and, sometimes even judicial (e.g. Article 20) organs of the State.  

The encroachment must remain within permissible limits and must  

                                                           200 Ibid, at page 571 (para 33)

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take place only in prescribed modes. The intention could never  

be to preserve something concurrently in the field of natural  

law or common law. It was to exclude all other control or to  

make the Constitution the sole repository of ultimate control  

over those aspects of human freedom which were guaranteed  

there.”201  (emphasis supplied)  

A similar position was adopted by Justice Chandrachud:  

“The right to personal liberty has no hallmark and therefore  

when the right is put in action it is impossible to identify  

whether the right is one given by the Constitution or is one  

which existed in the pre-Constitution era. If the argument of the  

respondents is correct, no action to enforce the right to personal  

liberty can at all fall within the mischief of the Presidential Order  

even if it mentions Articles 19, 20, 21 and 22 because, every  

preliminary objection by the Government to a petition to enforce the  

right to personal liberty can be effectively answered by contending  

that what is being enforced is either the natural right to personal  

liberty or generally, the pre-Constitution right to personal liberty.  

The error of the respondents argument lies in its assumption,  

and in regard to the argument of some of the counsel in its  

major articulate premise, that the qualitative content of the  

non-constitutional or pre-constitutional right to personal  

liberty is different from the content of the right to personal  

liberty conferred by Part III of the Constitution…”202               

(emphasis supplied)  

In his view:    

“It therefore does not make any difference whether any right to  

personal liberty was in existence prior to the enactment of the  

Constitution, either by way of a natural right, statutory right,  

common law right or a right available under the law of torts.  

Whatever may be the source of the right and whatever may be its  

jurisdiction, the right in essence and substance is the right to  

personal liberty. That right having been included in Part III, its  

                                                           201 Ibid, at page 604 (para 183)  202 Ibid, at page 664 (para 379)

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enforcement will stand suspended if it is mentioned in the  

Presidential Order issued under Article 359(1).”203  

Justice Bhagwati held as follows:  

“Now, to my mind, it is clear that when this principle of rule of law  

that the Executive cannot deprive a person of his liberty except by  

authority of law, is recognised and embodied as a fundamental right  

and enacted as such in Article 21, it is difficult to comprehend how  

it could continue to have a distinct and separate existence,  

independently and apart from this article in which it has been given  

constitutional vesture. I fail to see how it could continue in force  

under Article 372 when it is expressly recognised and embodied as  

a fundamental right in Article 21 and finds a place in the express  

provisions of the Constitution. Once this principle is recognised  

and incorporated in the Constitution and forms part of it, it  

could not have any separate existence apart from the  

Constitution, unless it were also enacted as a statutory  

principle by some positive law of the State…”204 (emphasis  

supplied)  

In his view, it is the Constitution which is supreme and if it ordains that a person who  

is detained otherwise than in accordance with law would not be entitled to enforce the  

right of personal liberty, the Court was duty bound to give effect to it:  

“…it cannot be overlooked that, in the ultimate analysis, the  

protection of personal liberty and the supremacy of law which  

sustains it must be governed by the Constitution itself. The  

Constitution is the paramount and supreme law of the land and if it  

says that even if a person is detained otherwise than in accordance  

with the law. he shall not be entitled to enforce his right of personal  

liberty, whilst a Presidential Order under Article 359, clause (1)  

specifying Article 21 is in force, I have to give effect to it. Sitting as  

I do, as a Judge under the Constitution, I cannot ignore the plain  

and emphatic command of the Constitution for what I may consider  

to be necessary to meet the ends of justice. It is said that law has  

                                                           203 Ibid, at page 666 (para 383)  204 Ibid, at page 701 (para 459)

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the feminine capacity to tempt each devotee to find his own image  

in her bosom. No one escapes entirely. Some yield blindly, some  

with sophistication. Only a few more or less effectively resist. I have  

always leaned in favour of upholding personal liberty, for, I believe,  

it is one of the most cherished values of mankind. Without it life  

would not be worth living. It is one of the pillars of free democratic  

society. Men have readily laid down their lives at its altar, in order  

to secure it, protect it and preserve it. But I do not think it would be  

right for me to allow my love of personal liberty to cloud my vision  

or to persuade me to place on the relevant provision of the  

Constitution a construction which its language cannot reasonably  

bear. I cannot assume to myself the role of Plato's “Philosopher  

King” in order to render what I consider ideal justice between the  

citizen and the State. After all, the Constitution is the law of all laws  

and there alone judicial conscience must find its ultimate support  

and its final resting place. It is in this spirit of humility and obedience  

to the Constitution and driven by judicial compulsion, that I have  

come to the conclusion that the Presidential Order dated June 27,  

1975 bars maintainability of a writ petition for habeas corpus where  

an order of detention is challenged on the ground that it is mala fide  

or not under the Act or not in compliance with it.”205  

In his dissenting opinion, Justice Khanna emphatically held that the suspension of the  

right to move any Court for the enforcement of the right under Article 21, upon a  

proclamation of emergency, would not affect the enforcement of the basic right to life  

and liberty.  The Constitution was not the sole repository of the right to life and liberty:  

“I am of the opinion that Article 21 cannot be considered to be the  

sole repository of the right to life and personal liberty. The right to  

life and personal liberty is the most precious right of human beings  

in civilised societies governed by the rule of law. Many modern  

Constitutions incorporate certain fundamental rights, including the  

one relating to personal freedom. According to Blackstone, the  

absolute rights of Englishmen were the rights of personal security,  

personal liberty and private property. The American Declaration of  

Independence (1776) states that all men are created equal, and  

                                                           205 Ibid, at pages 723-724 (para 487)

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among their inalienable rights are life, liberty, and the pursuit of  

happiness…”206  

Even in the absence of Article 21, it would not have been permissible for the State to  

deprive a person of his life and liberty without the authority of the law:  

“Even in the absence of Article 21 in the Constitution, the State has  

got no power to deprive a person of his life or liberty without the  

authority of law. This is the essential postulate and basic  

assumption of the rule of law and not of men in all civilised nations.  

Without such sanctity of life and liberty, the distinction between a  

lawless society and one governed by laws would cease to have any  

meaning. The principle that no one shall be deprived of his life or  

liberty without the authority of law is rooted in the consideration that  

life and liberty are priceless possessions which cannot be made the  

plaything of individual whim and caprice and that any act which has  

the effect of tampering with life and liberty must receive sustenance  

from and sanction of the laws of the land. Article 21 incorporates an  

essential aspect of that principle and makes it part of the  

fundamental rights guaranteed in Part III of the Constitution. It does  

not, however, follow from the above that if Article 21 had not been  

drafted and inserted in Part III, in that event it would have been  

permissible for the State to deprive a person of his life or liberty  

without the authority of law. No case has been cited before us to  

show that before the coming into force of the Constitution or in  

countries under rule of law where there is no provision  

corresponding to Article 21, a claim was ever sustained by the  

courts that the State can deprive a person of his life or liberty without  

the authority of law…”207  

The remedy for the enforcement of the right to life or liberty would not stand  

suspended even if the right to enforce Article 21 is suspended:  

“Recognition as fundamental right of one aspect of the pre-

constitutional right cannot have the effect of making things less  

favourable so far as the sanctity of life and personal liberty is  

                                                           206 Ibid, at page 747 (para 525)  207 Ibid, at pages 749-750 (para 530)

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concerned compared to the position if an aspect of such right had  

not been recognised as fundamental right because of the  

vulnerability of fundamental rights accruing from Article 359…”208  

Justice Khanna held that while wide powers to order preventive detention are vested  

in the State, there is no antithesis between the power to detain and power of the Court  

to examine the legality of such a detention:  

“The impact upon the individual of the massive and comprehensive  powers of preventive detention with which the administrative  officers are armed has to be cushioned with legal safeguards  against arbitrary deprivation of personal liberty if the premises of  the rule of law is not to lose its content and become  meaningless…”209  

119 The judgments rendered by all the four judges constituting the majority in ADM  

Jabalpur are seriously flawed. Life and personal liberty are inalienable to human  

existence. These rights are, as recognised in Kesavananda Bharati, primordial  

rights. They constitute rights under natural law.  The human element in the life of the  

individual is integrally founded on the sanctity of life. Dignity is associated with liberty  

and freedom. No civilized state can contemplate an encroachment upon life and  

personal liberty without the authority of law. Neither life nor liberty are bounties  

conferred by the state nor does the Constitution create these rights. The right to life  

has existed even before the advent of the Constitution. In recognising the right, the  

Constitution does not become the sole repository of the right.  It would be  

preposterous to suggest that a democratic Constitution without a Bill of Rights would  

leave individuals governed by the state without either the existence of the right to live  

                                                           208 Ibid, at page 751 (para 531)  209 Ibid, page 767 (para 574)

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or the means of enforcement of the right. The right to life being inalienable to each  

individual, it existed prior to the Constitution and continued in force under Article 372  

of the Constitution. Justice Khanna was clearly right in holding that the recognition of  

the right to life and personal liberty under the Constitution does not denude the  

existence of that right, apart from it nor can there be a fatuous assumption that in  

adopting the Constitution the people of India surrendered the most precious aspect of  

the human persona, namely, life, liberty and freedom to the state on whose mercy  

these rights would depend. Such a construct is contrary to the basic foundation of the  

rule of law which imposes restraints upon the powers vested in the modern state when  

it deals with the liberties of the individual. The power of the Court to issue a Writ of  

Habeas Corpus is a precious and undeniable feature of the rule of law.   

120 A constitutional democracy can survive when citizens have an undiluted  

assurance that the rule of law will protect their rights and liberties against any invasion  

by the state and that judicial remedies would be available to ask searching questions  

and expect answers when a citizen has been deprived of these, most precious rights.  

The view taken by Justice Khanna must be accepted, and accepted in reverence for  

the strength of its thoughts and the courage of its convictions.    

121 When histories of nations are written and critiqued, there are judicial decisions  

at the forefront of liberty. Yet others have to be consigned to the archives, reflective

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of what was, but should never have been.  The decision of the US Supreme Court in  

Buck v Bell210 ranks amongst the latter. It was a decision in which Justice Oliver  

Wendell Holmes Jr. accepted the forcible sterilization by tubular ligation of Carrie  

Bucks as part of a programme of state sponsored eugenic sterilization. Justice  

Holmes, while upholding the programme opined that: “three generations of imbeciles  

is enough”211. In the same vein was the decision of the US Supreme Court in  

Korematsu v United States212, upholding the imprisonment of a citizen in a  

concentration camp solely because of his Japanese ancestry.   

ADM Jabalpur must be and is accordingly overruled. We also overrule the decision  

in Union of India v Bhanudas Krishna Gawde213, which followed ADM Jabalpur.   

122 In I R Coelho v State of Tamil Nadu214, this Court took the view that ADM  

Jabalpur has been impliedly overruled by various subsequent decisions:   

“During Emergency, the fundamental rights were read even more  

restrictively as interpreted by the majority in ADM, Jabalpur v.  

Shivakant Shukla [(1976) 2 SCC 521]. The decision in ADM,  

Jabalpur [(1976) 2 SCC 521] about the restrictive reading of right to  

life and liberty stood impliedly overruled by various subsequent  

decisions.”215  

                                                           210 274 US 200 (1927)  211 A moving account of the times and the position is to be found in Siddhartha Mukherjee, The Gene: An Intimate  

History, Penguin Books Ltd. (2016), pages 78-85.  212 323 US 214 (1944)  213 (1977) 1 SCC 834  214 (2007) 2 SCC 1  215 Ibid, at page 76 (para 29)

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We now expressly do so.   

123 As a result of the Forty-Fourth Amendment to the Constitution, Article 359 has  

been amended to provide that during the operation of a proclamation of emergency,  

the power of the President to declare a suspension of the right to move a Court for  

the enforcement of the fundamental rights contained in Part III shall not extend to  

Articles 20 and 21.  

(ii) Suresh Koushal  

 124 Another discordant note which directly bears upon the evolution of the  

constitutional jurisprudence on the right to privacy finds reflection in a two judge Bench  

decision of this Court in Suresh Kumar Koushal v NAZ foundation216 (“Koushal”).  

The proceedings before this Court arose from a judgment217 of the Delhi High Court  

holding that Section 377 of the Indian Penal Code, insofar as it criminalises  

consensual sexual acts of adults in private is violative of Articles 14, 15 and 21 of the  

Constitution. The Delhi High Court, however, clarified that Section 377 will continue  

to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex  

involving minors. Among the grounds of challenge was that the statutory provision  

constituted an infringement of the rights to dignity and privacy.  The Delhi High Court  

held that:  

“…The sphere of privacy allows persons to develop human  

relations without interference from the outside community or from  

                                                           216 (2014) 1 SCC 1  217 Naz Foundation v Government of NCT, 2010 Cri LJ 94

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the State.  The exercise of autonomy enables an individual to attain  

fulfilment, grow in self-esteem, build relationships of his or her  

choice and fulfil all legitimate goals that he or she may set. In the  

Indian Constitution, the right to live with dignity and the right of  

privacy both are recognised as dimensions of Article 21…”218  

Section 377 was held to be a denial of the dignity of an individual and to criminalise  

his or her core identity solely on account of sexuality would violate Article 21.  The  

High Court adverted at length to global trends in the protection of privacy – dignity  

rights of homosexuals, including decisions emanating from the US Supreme Court,  

the South African Constitutional Court and the European Court of Human Rights.  The  

view of the High Court was that a statutory provision targeting homosexuals as a class  

violates Article 14, and amounted to a hostile discrimination on the grounds of sexual  

orientation (outlawed by Article 15). The High Court, however, read down Section 377  

in the manner which has been adverted to above.    

125 When the matter travelled to this Court, Justice Singhvi, speaking for the Bench  

dealt with several grounds including the one based on privacy – dignity.  The Court  

recognised that the right to privacy which is recognised by Article 12 of the Universal  

Declaration and Article 17 of ICCPR has been read into Article 21 “through expansive  

reading of the right to life and liberty”.  This Court, however, found fault with the basis  

of the judgment of the High Court for the following, among other reasons:  

“…the Division Bench of the High Court overlooked that a  

miniscule fraction of the country's population constitutes  

                                                           218 Ibid, at page 110 (para 48)

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lesbians, gays, bisexuals or transgenders and in last more  

than 150 years less than 200 persons have been prosecuted  

(as per the reported orders) for committing offence under Section  

377 IPC and this cannot be made sound basis for declaring that  

section ultra vires the provisions of Articles 14, 15 and 21 of the  

Constitution.”219 (emphasis supplied)  

The privacy and dignity based challenge was repelled with the following observations:  

“In its anxiety to protect the so-called rights of LGBT persons  

and to declare that Section 377 IPC violates the right to  

privacy, autonomy and dignity, the High Court has extensively  

relied upon the judgments of other jurisdictions. Though these  

judgments shed considerable light on various aspects of this right  

and are informative in relation to the plight of sexual minorities, we  

feel that they cannot be applied blindfolded for deciding the  

constitutionality of the law enacted by the Indian Legislature.”220  

(emphasis supplied)  

126 Neither of the above reasons can be regarded as a valid constitutional basis  

for disregarding a claim based on privacy under Article 21 of the Constitution.  That  

“a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals  

or transgenders” (as observed in the judgment of this Court) is not a sustainable basis  

to deny the right to privacy.  The purpose of elevating certain rights to the stature of  

guaranteed fundamental rights is to insulate their exercise from the disdain of  

majorities, whether legislative or popular. The guarantee of constitutional rights does  

not depend upon their exercise being favourably regarded by majoritarian opinion.   

The test of popular acceptance does not furnish a valid basis to disregard rights which  

are conferred with the sanctity of constitutional protection.  Discrete and insular  

                                                           219 Koushal (Supra note 216), at page 69-70 (para 66)  220 Ibid, at page 78 (para 77)

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minorities face grave dangers of discrimination for the simple reason that their views,  

beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic  

Constitution founded on the rule of law, their rights are as sacred as those conferred  

on other citizens to protect their freedoms and liberties. Sexual orientation is an  

essential attribute of privacy. Discrimination against an individual on the basis of  

sexual orientation is deeply offensive to the dignity and self-worth of the individual.   

Equality demands that the sexual orientation of each individual in society must be  

protected on an even platform. The right to privacy and the protection of sexual  

orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and  

21 of the Constitution.  

127 The view in Koushal that the High Court had erroneously relied upon  

international precedents “in its anxiety to protect the so-called rights of LGBT.  

persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay,  

bisexual and transgender population cannot be construed to be “so-called rights”.  The  

expression “so-called” seems to suggest the exercise of a liberty in the garb of a right  

which is illusory.  This is an inappropriate construction of the privacy based claims of  

the LGBT population.  Their rights are not “so-called” but are real rights founded on  

sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and  

dignity. They constitute the essence of liberty and freedom. Sexual orientation is an  

essential component of identity. Equal protection demands protection of the identity  

of every individual without discrimination.   

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125    

128 The decision in Koushal presents a de minimis rationale when it asserts that  

there have been only two hundred prosecutions for violating Section 377. The de  

minimis hypothesis is misplaced because the invasion of a fundamental right is not  

rendered tolerable when a few, as opposed to a large number of persons, are  

subjected to hostile treatment. The reason why such acts of hostile discrimination are  

constitutionally impermissible is because of the chilling effect which they have on the  

exercise of the fundamental right in the first place. For instance, pre-publication  

restraints such as censorship are vulnerable because they discourage people from  

exercising their right to free speech because of the fear of a restraint coming into  

operation. The chilling effect on the exercise of the right poses a grave danger to the  

unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.   

The chilling effect is due to the danger of a human being subjected to social  

opprobrium or disapproval, as reflected in the punishment of crime.  Hence the  

Koushal rationale that prosecution of a few is not an index of violation is flawed and  

cannot be accepted. Consequently, we disagree with the manner in which Koushal  

has dealt with the privacy – dignity based claims of LGBT persons on this aspect.    

Since the challenge to Section 377 is pending consideration before a larger Bench of  

this Court, we would leave the constitutional validity to be decided in an appropriate  

proceeding.  

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126    

J India’s commitments under International law  

129 The recognition of privacy as a fundamental constitutional value is part of  

India’s commitment to a global human rights regime.  Article 51 of the Constitution,  

which forms part of the Directive Principles, requires the State to endeavour to “foster  

respect for international law and treaty obligations in the dealings of organised  

peoples with one another”221.  Article 12 of the Universal Declaration of Human Rights,  

recognises the right to privacy:  

“Article 12: No one shall be subjected to arbitrary interference with  

his privacy, family, home or correspondence, nor to attacks upon  

his honour and reputation.  Everyone has the right to the protection  

of the law against such interference or attacks.”   

 Similarly, the International Covenant on Civil and Political Rights was adopted on 16  

December 1979 and came into effect on 23 March 1976.  India ratified it on 11  

December 1977.  Article 17 of the ICCPR provides thus:  

“The obligations imposed by this article require the State to adopt  

legislative and other measures to give effect to the prohibition  

against such interferences and attacks as well as to the protection  

of the right.”   

The Protection of Human Rights Act, 1993 which has been enacted by Parliament  

refers to the ICCPR as a human rights instrument. Section 2(1)(d) defines human  

rights:   

                                                           221 Article 51(c) of the Indian Constitution  

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127    

“human rights” means the rights relating to life, liberty, equality and  

dignity of the individual guaranteed by the Constitution or embodied  

in the International Covenants and enforceable by courts in India.”  

 Section 2(1)(f) defines International Covenants:   

“International Covenants” means the International Covenant on  

Civil and Political Rights and the International Covenant on  

Economic, Social and Cultural rights adopted by the General  

Assembly of the United Nations on the 16th December, 1966 [and  

such other Covenant or Convention adopted by the General  

Assembly of the United Nations as the Central Government may,  

by notification, specify”  

 Under Section 12(f) of the Protection of Human Rights Act, 1993, the National Human  

Rights Commission:  

“is entrusted with the function of studying treaties and other  

international instruments on human rights and make  

recommendations for their effective implementation.”   

 130 The ICCPR casts an obligation on states to respect, protect and fulfil its norms.   

The duty of a State to respect mandates that it must not violate the right. The duty to  

protect mandates that the government must protect it against interference by private  

parties.  The duty to fulfil postulates that government must take steps towards  

realisation of a right. While elaborating the rights under Article 17, general comment  

16 specifically stipulates that:  

“…..there is universal recognition of the fundamental importance,  

and enduring relevance, of the right to privacy and of the need to  

ensure that it is safeguarded, in law and practice.”  

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128    

Significantly, while acceding to the ICCPR, India did not file any reservation or  

declaration to Article 17. While India filed reservations against Articles 1, 9 and 13,  

there was none to Article 17:  

“Article 1 refers to the right to self-determination. The reservation to  

Article 1 states that “the Government of the Republic of India  

declares that the words ‘the right of self-determination’ appearing in  

[this article] apply only to the peoples under foreign domination and  

that these words do not apply to sovereign independent States or  

to a section of a people or nation-which is the essence of national  

integrity. ‘ The reservation to Article 9, which refers to the right to  

liberty and security of person, detention and compensation payable  

on wrongful arrest or detention, states that “the government of the  

Republic of India takes the position that the provisions of the article  

shall be so applied as to be in consonance with the provisions of  

clauses (3) to (7) of article 22 of the Constitution of India. Further  

under the Indian Legal System, there is no enforceable right to  

compensation for persons claiming to be victims of unlawful arrest  

or detention against the State.” The reservation to Article 13 – which  

refers to protections for aliens, states that “the Government of the  

Republic of India reserves its right to apply its law relating to  

foreigners.”    

On 30 June 2014, a report was presented by the Office of the United Nations High  

Commissioner for Human Rights.222 The report underscores that:  

“…there is universal recognition of the fundamental importance,  

and enduring relevance, of the right to privacy and of the need to  

ensure that it is safeguarded, in law and in practice.”223  

                                                           222 “The Right to privacy in the Digital age”, Report of the Office of the United Nations High Commissioner for  Human Rights (30 June 2014)   223  Ibid, at page 5 (para 13)

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129    

131 In Bachan Singh v State of Punjab224 (“Bachan Singh”), this Court  

considered in relation to the death penalty, the obligations assumed by India in  

international law, following the ratification of the ICCPR. The Court held that the  

requirements of Article 6 of the ICCPR are substantially similar to the guarantees  

contained in Articles 20 and 21 of the Constitution. The penal law of India was held to  

be in accord with its international commitments. In Francis Coralie, this Court, while  

explaining the ambit of Article 21, held that:   

 “…there is implicit in Article 21 the right to protection against torture  

or cruel, inhuman or degrading treatment which is enunciated in  

Article 5 of the Universal Declaration of Human Rights and  

guaranteed by Article 7 of the International Covenant on Civil and  

Political Rights…”225  

132 In Vishaka v State of Rajasthan226, this Court observed that in the absence of  

domestic law, the Convention on the Elimination of Discrimination against Women  

(CEDAW) is applicable. In NALSA, while dealing with the rights of transgenders, this  

Court found that the international conventions were not inconsistent with the  

fundamental rights guaranteed by the Constitution and must be recognised and  

followed.   

133 The position in law is well settled. Where there is a contradiction between  

international law and a domestic statute, the Court would give effect to the latter.   In  

                                                           224  (1980) 2 SCC 684  225 Francis Coralie (Supra note 159), at page 619 (para 8)  226 (1997) 6 SCC 241

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the present case, there is no contradiction between the international obligations which  

have been assumed by India and the Constitution.  The Court will not readily presume  

any inconsistency. On the contrary, constitutional provisions must be read and  

interpreted in a manner which would enhance their conformity with the global human  

rights regime.  India is a responsible member of the international community and the  

Court must adopt an interpretation which abides by the international commitments  

made by the country particularly where its constitutional and statutory mandates  

indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament  

would indicate a legislative desire to implement the human rights regime founded on  

constitutional values and international conventions acceded to by India.  

 K Comparative Law    

134 This section analyses the evolution of the concept of privacy in other  

jurisdictions from a comparative law perspective. The Court is conscious of the limits  

of a comparative approach. Each country is governed by its own constitutional and  

legal structure. Constitutional structures have an abiding connection with the history,  

culture, political doctrine and values which a society considers as its founding  

principles. Foreign judgments must hence be read with circumspection ensuring that  

the text is not read isolated from its context. The countries which have been dealt with  

are:   

(i) United Kingdom;  

(ii) United States;     

(iii) South Africa; and

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131    

(iv) Canada.  

The narrative will then proceed to examine the decisions of the European Court of  

Human Rights, the Court of Justice of the European Union and the Inter-American  

Court of Human Rights. These decisions are indicative of the manner in which the  

right to privacy has been construed in diverse jurisdictions based on the histories of  

the societies they govern and the challenges before them.  

(i) U K decisions  

The first common law case regarding protection of privacy is said to be Semayne’s  

Case227 (1604). The case related to the entry into a property by the Sheriff of London  

in order to execute a valid writ. The case is famous for the words of Sir Edward Coke:

“That the house of every one is to him as his castle and fortress, as  

well for his defence against injury and violence, as for his repose …”

Then, in the case of Entick v Carrington228 (1765), Entick’s house had been forcibly  

entered into by agents of the State/King. Lord Camden CJ held that:     

 “By the laws of England, every invasion of private property, be it  

ever so minute, is a trespass. No man can set his foot upon my  

ground without my licence, but he is liable to an action, though the  

damage be nothing; which is proved by every declaration in  

trespass, where the defendant is called upon to answer for bruising  

the grass and even treading upon the soil.”  

                                                           227 Peter Semayne v Richard Gresham, 77 ER 194  228 (1765) 19 St. Tr. 1029

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132    

Privacy jurisprudence developed further in the 19th century. In 1849, in Prince Albert  

v Strange229 (1849), publication was sought to be restrained of otherwise unpublished  

private etchings and lists of works done by Prince Albert and Queen Victoria. In the  

High Court of Chancery, Lord Cottenham observed that:   

 “… where privacy is the right invaded, postponing the injunction  

would be equivalent to denying it altogether. The interposition of  

this Court in these cases does not depend upon any legal right, and  

to be effectual, it must be immediate.”  

However, the approach adopted by the Court in Prince Albert case took a different  

turn in the case of Kaye v Robertson230 (1991). In this case, when the appellant, after  

an accident, was recovering from brain surgery in a private hospital room, two  

journalists posed as doctors and took photographs of him. The appellant attempted to  

obtain an order to restrain publication of the photographs. The Court of Appeal held  

that:  

“… in English law there is no right to privacy, and accordingly there  

is no right of action for breach of a person's privacy”  

The decision in R v Director of Serious Fraud Office, ex parte Smith231 (1993)  

discussed the question of the right to silence. The applicant (the chairman and  

managing director of a company) was charged of doing acts with the intent to defraud  

its creditors. After having been cautioned, he was asked to answer questions of the  

Director of the Serious Fraud Office. The issue was whether the requirement to  

                                                           229 (1849) 41 ER 1171  230 [1991] FSR 62  231 [1993] AC 1

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answer questions infringed the right to silence. It was held that the powers of the  

Director of the Serious Fraud Office, under the Criminal Justice Act 1987, entitled  

him/her to compel the applicant to answer questions on pain of commission of a  

criminal offence. Lord Mustill, who delivered the leading opinion of the Court, held  

that:  

“[It] is a simple reflection of the common view that one person  

should so far as possible be entitled to tell another person to mind  

his own business. All civilised states recognise this assertion of  

personal liberty and privacy. Equally, although there may be  

pronounced disagreements between states, and between individual  

citizens within states, about where the line should be drawn, few  

would dispute that some curtailment of the liberty is indispensable  

to the stability of society; and indeed in the United Kingdom today  

our lives are permeated by enforceable duties to provide  

information on demand, created by Parliament and tolerated by the  

majority, albeit in some cases with reluctance.”  

Lord Mustill’s statement “underlines the approach taken by the common law to  

privacy” that “it recognised privacy as a principle of general value” and that “privacy  

had only been given discrete and specific protection at common law”.232  

This approach was diluted in the case of Wainwright v Home Office233(2004), where  

a mother and son were subjected to a strip-search when visiting a prison in 1997, in  

accordance with existing Prison Rules. The son, who was mentally impaired and  

suffered from cerebral palsy, later developed post-traumatic stress disorder. Claims  

for damages arising from trespass and trespass to the person were issued. At the time  

                                                           232  Lord Neuberger,  “Privacy in the 21st Century”, UK Association of Jewish Lawyers and Jurists' Lecture (28  November 2012)  233 [2004] 2 AC 406

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134    

of the incident, the Human Rights Act, 1998 (HRA) had not yet come into force. When  

the case reached before House of Lords, it was argued that “the law of tort should  

give a remedy for any kind of distress caused by an infringement of the right of privacy  

protected by article 8 of the European Convention for the Protection of Human Rights”.  

It was further argued that reliance must be placed upon the judgment of Sedley LJ in  

Douglas v Hello! Ltd234 (2001), where it was said that:   

 "What a concept of privacy does, however, is accord  

recognition to the fact that the law has to protect not only those  

people whose trust has been abused but those who simply find  

themselves subjected to an unwanted intrusion into their  

personal lives. The law no longer needs to construct an artificial  

relationship of confidentiality between intruder and victim: it can  

recognise privacy itself as a legal principle drawn from the  

fundamental value of personal autonomy." (emphasis supplied)  

However, Lord Hoffman in Wainwright rejected all the contentions and held that:   

 “I do not understand Sedley LJ to have been advocating the  

creation of a high-level principle of invasion of privacy. His  

observations are in my opinion no more (although certainly no less)  

than a plea for the extension and possibly renaming of the old action  

for breach of confidence.”  

Lord Hoffman also observed that:  

 “What the courts have so far refused to do is to formulate a general  

principle of “invasion of privacy” …  

There seems to me a great difference between identifying privacy  

as a value which underlies the existence of a rule of law (and may  

point the direction in which the law should develop) and privacy as  

a principle of law in itself. The English common law is familiar with  

                                                           234 [2001] QB 967

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136    

In holding so, Lord Hope relied upon the following statement of Lord Woolf in A v B  

Inc237 (2003):  

 “A duty of confidence will arise whenever a party subject to the duty  

is in a situation where he either knows or ought to know that the  

other person can reasonably expect his privacy to be protected.”  

Lord Hope also held that the Courts, 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”.  

Baroness Hale wrote a concurring judgment and held that:  

“The Human Rights 1998 Act does not create any new cause of action  

between private persons. But if there is a relevant cause of action  

applicable, the court as a public authority must act compatibly with both  

parties' Convention rights. In a case such as this, the relevant vehicle  

will usually be the action for breach of confidence, as Lord Woolf CJ  

held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4 :  

"[Articles 8 and 10] have provided new parameters  

within which the court will decide, in an action for  

breach of confidence, whether a person is entitled  

to have his privacy protected by the court or  

whether the restriction of freedom of expression  

which such protection involves cannot be justified.  

The court's approach to the issues which the  

applications raise has been modified because,  

under section 6 of the 1998 Act, the court, as a  

public authority, is required not to 'act in a way  

which is incompatible with a Convention right'. The  

court is able to achieve this by absorbing the rights  

which articles 8 and 10 protect into the long-

established action for breach of confidence. This  

involves giving a new strength and breadth to the  

action so that it accommodates the requirements of  

these articles."  

                                                           237 [2003] QB 195

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137    

Later, in Douglas v Hello! Ltd238, it was held that:  

 “What the House [in Campbell] was agreed upon was that the  

knowledge, actual or imputed, that information is private will  

normally impose on anyone publishing that information the duty to  

justify what, in the absence of justification, will be a wrongful  

invasion of privacy.”  

Subsequent cases establish the contribution the HRA has made in jurisprudence on  

privacy in the UK. In Associated Newspapers Limited v His Royal Highness the  

Prince of Wales239 (2006), an appeal was made against the judgment in respect of  

the claim of Prince Charles for breach of confidence and infringement of copyright.  

The case brought about when ‘The Mail on Sunday’ published extracts of a dispatch  

by the Prince of Wales. The Court held that:    

 “The information at issue in this case is private information, public  

disclosure of which constituted an interference with Prince Charles’  

Article 8 rights. As heir to the throne, Prince Charles is an important  

public figure. In respect of such persons the public takes an interest  

in information about them that is relatively trivial. For this reason  

public disclosure of such information can be particularly intrusive…   

Prince Charles has a valid claim based on breach of confidence and  

interference with his Article 8 rights.”  

In Murray v Big Pictures (UK) Ltd240 (2008), a photographer had taken a series of  

photographs of a writer’s infant son, which were later published in a newspaper. The  

issue was whether there was misuse of private information by taking photographs. It  

was held that:   

                                                           238 [2006] QB 125  239 [2006] EWCA Civ 1776  240 [2008] 3 WLR 1360

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138    

 “[The] question of whether there is a reasonable expectation of  

privacy is a broad one, which takes account of all the circumstances  

of the case. They include the attributes of the claimant, the nature  

of the activity in which the claimant was engaged, the place at which  

it was happening, the nature and purpose of the intrusion, the  

absence of consent and whether it was known or could be inferred,  

the effect on the claimant and the circumstances in which and the  

purposes for which the information came into the hands of the  

publisher… [I]t is at least arguable that David had a reasonable  

expectation of privacy. The fact that he is a child is in our view of  

greater significance than the judge thought.”   

R v The Commissioner of Police of the Metropolis241 (2011) was a case concerning  

the extent of the police's power (under guidelines issued by the Association of Chief  

Police Officers- the ACPO guidelines) to indefinitely retain biometric data associated  

with individuals who are no longer suspected of a criminal offence. The UK Supreme  

Court, by a majority held that the police force's policy of retaining DNA evidence in the  

absence of 'exceptional circumstances' was unlawful and a violation of Article 8 of the  

European Convention on Human Rights. Lord Dyson, on behalf of the majority, held  

that:  

“It is important that, in such an important and sensitive area as the  

retention of biometric data by the police, the court reflects its  

decision by making a formal order to declare what it considers to be  

the true legal position. But it is not necessary to go further. Section  

8(1) of the HRA gives the court a wide discretion to grant such relief  

or remedy within its powers as it considers just and appropriate.  

Since Parliament is already seized of the matter, it is neither just  

nor appropriate to make an order requiring a change in the  

legislative scheme within a specific period…  

                                                           241 [2011] UKSC 21

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139    

….he present ACPO guidelines are unlawful because they are  

incompatible with article 8 of the ECHR. I would grant no other  

relief.”    

In the matter of an application by JR38 for Judicial Review (Northern Ireland)242  

(2015), the Appellant was involved in rioting in 2010, when still only 14 years of age.  

The police, in order to identify those responsible, and for the sake of deterrence,  

published CCTV footage depicting the Appellant in two newspapers. The issue  

involved was: “Whether the publication of photographs by the police to identify a young  

person suspected of being involved in riotous behaviour and attempted criminal damage  

can ever be a necessary and proportionate interference with that person’s article 8  

rights?” The majority held that Article 8 was not engaged, as there was no reasonable  

expectation of privacy in the case. Lord Toulson (with whom Lord Hodge agreed), while  

stating that the conduct of the police did not amount, prima facie, to an interference with  

the appellant’s right to respect for his private life, held that:  

 “The reasonable or legitimate expectation test is an objective test.  

It is to be applied broadly, taking account of all the circumstances  

of the case (as Sir Anthony Clarke said in Murray’s case) and having  

regard to underlying value or values to be protected. Thus, for  

example, the publication of a photograph of a young person acting  

in a criminal manner for the purpose of enabling the police to  

discover his identity may not fall within the scope of the protection  

of personal autonomy which is the purpose of article 8, but the  

publication of the same photograph for another purpose might.”  

                                                           242 [2015] UKSC 42  

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141    

Convention on Human Rights (ECHR), has adopted the guarantee of the right to  

privacy into UK domestic law. The Convention, together with its adoption into  

domestic legislation, has led to a considerable change in the development of  

protection of human privacy in English law.  

(ii) US Supreme Court decisions  

The US Constitution does not contain an express right to privacy. But American  

privacy jurisprudence reflects that it has been protected under several amendments245  

of the US Constitution.  

 As early as 1886, in Boyd v United States246, the question before the US Supreme  

Court was whether compulsory production of a person’s private papers to be used in  

evidence against him in a judicial proceeding, is an unreasonable search and seizure  

within the meaning of the Fourth Amendment. Justice Bradley delivered the opinion  

of the Court and held as follows:   

“The principles laid down in this opinion affect the very essence of  

constitutional liberty and security… they apply to all invasions  

on the part of the government and its employees of the sanctity  

of a man's home and the privacies of life. It is not the breaking  

of his doors and the rummaging of his drawers that constitutes  

the essence of the offence, but it is the invasion of his  

indefeasible right of personal security, personal liberty, and  

private property, -- it is the invasion of this sacred right ...  

                                                           245The concept of privacy plays a major role in the jurisprudence of the First, Third, Fourth, Fifth, and Fourteenth  Amendments. The Ninth Amendment has also been interpreted to justify broadly reading the Bill of Rights to  protect privacy in ways not specifically provided in the first eight amendments.   246 116 US 616 (1886)

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And any compulsory discovery by extorting the party's oath, or  

compelling the production of his private books and papers, to  

convict him of crime or to forfeit his property, is contrary to the  

principles of a free government... It may suit the purposes of  

despotic power, but it cannot abide the pure atmosphere of political  

liberty and personal freedom.” (emphasis supplied)  

In two decisions in the 1920s, the Court read the Fourteenth Amendment’s liberty to  

prohibit states from making laws interfering with the private decisions of parents and  

educators to shape the education of their children. In Meyer v Nebraska247 (1923),  

the Court struck down a state law that prohibited the teaching of foreign languages to  

students that had not yet completed the eighth grade. The Court in a 7:2 decision,  

written by Justice McReynolds, concluded that the state failed to show a compelling  

need to infringe upon the rights of parents and teachers to decide on the best course  

of education for young students. On liberty, Justice McReynolds held:  

 “Without doubt, it denotes not merely freedom from bodily restraint, but  

also the right of the individual to contract, to engage in any of the common  

occupations of life, to acquire useful knowledge, to marry, establish a  

home and bring up children, to worship God according to the dictates of  

his own conscience, and generally to enjoy those privileges long  

recognized at common law as essential to the orderly pursuit of happiness  

by free men. The established doctrine is that this liberty may not be  

interfered with, under the guise of protecting the public interest, by  

legislative action which is arbitrary or without reasonable relation to some  

purpose within the competency of the State to effect.”  

                                                           247 262 US 390 (1923)

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Two years later, in Pierce v Society of Sisters248 (1925), the Court, relying upon  

Mayer v Nebraska, struck down the Oregon Compulsory Education Act, which  

mandated all children (between eight and sixteen years) to attend  public schools. It  

was held the said statute is an “unreasonable interference with the liberty of the  

parents and guardians to direct the upbringing of the children, and in that respect  

violates the Fourteenth Amendment”.  

In Olmstead v United States249 (1928), the question before the Court was whether  

the use of evidence of private telephone conversations, intercepted by means of  

wiretapping amounted to a violation of the Fourth and Fifth Amendments. In a 5:4  

decision, it was held that there was no violation of the Fourth and Fifth Amendments.  

Chief Justice Taft wrote the majority judgment, holding that:   

“The Amendment itself shows that the search is to be of material  

things -- the person, the house, his papers, or his effects…. The  

Amendment does not forbid what was done here. There was no  

searching. There was no seizure. The evidence was secured by the  

use of the sense of hearing, and that only. There was no entry of  

the houses or offices of the defendants.”  

However, Justice Louis Brandeis wrote a dissenting opinion and observed that:  

“… time works changes, brings into existence new conditions and  

purposes." Subtler and more far-reaching means of invading  

privacy have become available to the Government. Discovery and  

invention have made it possible for the Government, by means far  

more effective than stretching upon the rack, to obtain disclosure in  

court of what is whispered in the closet. Moreover, “in the  

                                                           248 (268) US 510 (1925)  249 277 US 438 (1928)

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application of a constitution, our contemplation cannot be only  

of what has, been but of what may be.” The progress of science  

in furnishing the Government with means of espionage is not likely  

to stop with wiretapping. Ways may someday be developed by  

which the Government, without removing papers from secret  

drawers, can reproduce them in court, and by which it will be  

enabled to expose to a jury the most intimate occurrences of the  

home. Advances in the psychic and related sciences may bring  

means of exploring unexpressed beliefs, thoughts and emotions…”  

(emphasis supplied)  

He questioned whether the Constitution affords no protection against such invasions  

of individual security. Justice Brandeis answers this question in a celebrated passage:  

“The makers of our Constitution undertook to secure conditions  

favorable to the pursuit of happiness. They sought to protect  

Americans in their beliefs, their thoughts, their emotions and their  

sensations. They conferred, as against the Government, the  

right to be let alone -- the most comprehensive of rights, and  

the right most valued by civilized men. To protect that right,  

every unjustifiable intrusion by the Government upon the privacy of  

the individual, whatever the means employed, must be deemed a  

violation of the Fourth Amendment...” (emphasis supplied)  

The Court, in the case of Griswold v Connecticut250 (1965), invalidated a state law  

prohibiting the possession, sale, and distribution of contraceptives to married couples,  

for the reason that the law violated the right to marital privacy. Justice Douglas, who  

delivered the main opinion, observed that this right emanated from “penumbras” of  

the fundamental constitutional guarantees and rights in the Bill of Rights, which  

together create “zones of privacy”. Accordingly, it was held that:  

                                                           250 381 US 479 (1965)

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“The present case, then concerns a relationship lying within the  

zone of privacy created by several fundamental constitutional  

guarantees… Would we allow the police to search the sacred  

precincts of marital bedrooms of telltale signs of the use of  

contraceptives? The very idea is repulsive to the notions of privacy  

surrounding the marriage relationship.”  

Justice Goldberg wrote in the concurring opinion that:  

“The fact that no particular provision of the Constitution explicitly  

forbids the State from disrupting the traditional relation of the family  

-- a relation as old and as fundamental as our entire civilization --  

surely does not show that the Government was meant to have the  

power to do so. Rather, as the Ninth Amendment expressly  

recognizes, there are fundamental personal rights such as this one,  

which are protected from abridgment by the Government, though  

not specifically mentioned in the Constitution.”  

The 1967 decision in Katz v United States251 (“Katz”) overruled Olmstead v United  

States (supra) and revolutionized the interpretation of the Fourth Amendment  

regarding the extent to which a constitutional right to privacy applies against  

government interference. In this case, Charles Katz was a gambler who used a public  

telephone booth to transmit illegal wagers. Unbeknownst to Katz, the FBI which was  

investigating Katz’s activity, was recording his conversations via an electronic  

eavesdropping device attached to the exterior of the phone booth. Subsequently, Katz  

was convicted based on these recordings. He challenged his conviction, arguing that  

the recordings were obtained in violation of his Fourth Amendment rights. The  

constitutional question in the case was whether the 4th Amendment protection from  

‘unreasonable searches and seizures’ was restricted to the search and seizure of  

                                                           251 389 US 347 (1967)

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tangible property, or did it extend to intangible areas such as conversations overheard  

by others. It was held that the Government's eavesdropping activities violated the  

privacy, upon which petitioner justifiably relied, while using the telephone booth, and  

thus constituted a “search and seizure” within the meaning of the Fourth Amendment,  

and that the Amendment governs not only the seizure of tangible items, but extends  

as well to the recording of oral statements.  

Prior to 1967 when determining the ‘reasonable expectation of privacy’ for purposes  

of discussing Fourth Amendment violations, the analysis was focused on whether the  

authority had trespassed on a private location. This ‘trespass doctrine’ was the  

prevailing test until Katz, which extended the protection of the Fourth Amendment  

from ‘places’ to ‘people’, affording individuals more privacy even in public. The  

‘trespass doctrine’ applied in Olmstead v United States (supra) was held to be no  

longer relevant.  

Justice Stewart wrote the majority (7:1) opinion and held that:  

“One who occupies it [a telephone booth], shuts the door behind  

him, and pays the toll that permits him to place a call is surely  

entitled to assume that the words he utters into the  

mouthpiece will not be broadcast to the world. To read the  

Constitution more narrowly is to ignore the vital role that the  

public telephone has come to play in private communication.”  

(emphasis supplied)  

Justice Harlan wrote the concurring judgment holding that:  

“a) that an enclosed telephone booth is an area where, like a  home… a person has a constitutionally protected reasonable  expectation of privacy; (b) that electronic, as well as physical,

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intrusion into a place that is in this sense private may  constitute a violation of the Fourth Amendment....”                                   (emphasis  supplied)    

The reasonable expectation of privacy test was formulated as follows:  

“....the Fourth Amendment protects people, not places." The  

question, however, is what protection it affords to those  

people. Generally, as here, the answer to that question requires  

reference to a "place." My understanding of the rule that has  

emerged from prior decisions is that there is a twofold requirement,  

first that a person has exhibited an actual (subjective)  

expectation of privacy and, second, that the expectation be  

one that society is prepared to recognize as "reasonable."  

Thus, a man's home is, for most purposes, a place where he  

expects privacy, but objects, activities, or statements that he  

exposes to the "plain view" of outsiders are not "protected,"  

because no intention to keep them to himself has been  

exhibited. On the other hand, conversations in the open would  

not be protected against being overheard, for the expectation  

of privacy under the circumstances would be unreasonable.”  

(emphasis supplied)  

In Stanley v Georgia252 (1969), the Court analyzed the constitutionality of a statute  

imposing criminal sanctions upon the knowing possession of obscene matter. The  

Court, in a unanimous decision, held that mere private possession of obscene matter  

cannot constitutionally be made a crime:  

“For also fundamental is the right to be free, except in very limited  

circumstances, from unwanted governmental intrusions into one's  

privacy...  

[T]he rights that the appellant is asserting in the case before us...the  

right to read or observe what he pleases -- the right to satisfy his  

intellectual and emotional needs in the privacy of his own  

home…..the right to be free from state inquiry into the contents of  

his library...  

                                                           252 394 US 557 (1969)

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Whatever the power of the state to control public dissemination of  

ideas inimical to the public morality, it cannot constitutionally  

premise legislation on the desirability of controlling a person's  

private thoughts.”  

Seven years after Griswold, the Court expanded the right to privacy beyond the  

‘marital bedroom’ to include unmarried persons. In Eisenstadt v Baird253 (1972), the  

Court invalidated a law prohibiting the distribution of contraceptives to unmarried  

persons, ruling that it violated the Equal Protection Clause of the Constitution:  

“It is true that in Griswold the right of privacy in question inhered in  

the marital relationship. Yet the marital couple is not an independent  

entity with a mind and heart of its own, but an association of two  

individuals each with a separate intellectual and emotional makeup.  

If the right of privacy means anything, it is the right of the individual,  

married or single, to be free from unwarranted governmental  

intrusion into matters so fundamentally affecting a person as the  

decision whether to bear or beget a child.”  

The decision in Paris Adult Theatre I v Slaton254 (1973), upheld a state court's  

injunction against the showing of obscene films in a movie theatre, restricted to  

consenting adults. The Court distinguished the case from Stanley v Georgia (supra),  

on the ground that the privacy of the home in Stanley was not the same as the  

commercial exhibition of obscene movies in a theatre. Chief Justice Burger observed  

that the prior decisions of the Supreme Court on the right to privacy only included  

those personal rights that were “fundamental" or “implicit in the concept of ordered  

                                                           253 405 US 438 (1972)  254 413 US 49 (1973)

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liberty” such as “the personal intimacies of the home, the family, marriage,  

motherhood, procreation and childbearing” and held that:  

“Nothing, however, in this Court's decisions intimates that there is  

any "fundamental" privacy right "implicit in the concept of ordered  

liberty" to watch obscene movies in places of public  

accommodation… The idea of a "privacy" right and a place of public  

accommodation are, in this context, mutually exclusive.”  

In the landmark decision on the right to abortion, Roe v Wade255 (1973), the Court  

dealt with the question of the right of an unmarried pregnant woman to terminate her  

pregnancy by abortion. The constitutionality of a Texas Statute prohibiting abortions  

except with respect to those procured or admitted by medical advice for the purpose  

of saving the life of the mother was challenged on the ground that the law improperly  

invaded the right and the choice of a pregnant woman to terminate her pregnancy and  

was violative of the “liberty” guaranteed under the Fourteenth Amendment and the  

right to privacy recognized in Griswold. The Court ruled 7:2 that a right to privacy  

under the Due Process Clause of the Fourteenth Amendment extended to a woman's  

decision to have an abortion, but that this right must be balanced against the state's  

interests in regulating abortions. Justice Blackmun delivered the majority judgment  

and held that:  

“The Constitution does not explicitly mention any right of  privacy. In a line of decisions, however, the Court has  recognised that a right of personal privacy, or a guarantee of  certain areas or zones of privacy, does exist under the  Constitution. In varying contexts, the Court or individual Justices  have, indeed, found at least the roots of that right in the First  Amendment; in the penumbras of the Bill of Rights; in the Ninth  

                                                           255 410 US 113 (1973)

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Amendment; or in the concept of liberty guaranteed by the first  section of the Fourteenth Amendment...   

This right of privacy, whether it be founded in the Fourteenth  Amendment's concept of personal liberty and restrictions  upon state action, as we feel it is, or, as the District Court  determined, in the Ninth Amendment's reservation of rights to  the people, is broad enough to encompass a woman's decision  whether or not to terminate her pregnancy.” (emphasis supplied)  

The right to privacy in bank records was analysed by the US Supreme Court in United  

States v Miller256 (1976). In this case federal agents were investigating the defendant  

for his involvement in a bootlegging conspiracy. The agents subpoenaed two banks  

and received his bank records. As a result, he was indicted. The question was whether  

an individual reasonably can expect that records kept incidental to his personal  

banking transactions will be protected from uncontrolled government inspection. In a  

6:3 opinion, the Supreme Court held that a bank depositor has no Fourth Amendment  

interest in the records that his bank is required to keep in compliance with the Bank  

Secrecy Act of 1970, and that Miller had no right to privacy in his bank records. Writing  

for the majority, Justice Lewis F. Powell asserted that the “documents subpoenaed...  

are not [Miller’s] ‘private papers’,” but instead, part of the bank’s business records. It  

was held:  

“There is no legitimate "expectation of privacy" in the contents  

of the original checks and deposit slips, since the checks are  

not confidential communications, but negotiable instruments  

to be used in commercial transactions, and all the documents  

obtained contain only information voluntarily conveyed to the banks  

and exposed to their employees in the ordinary course of business.  

                                                           256 425 US 435 (1976)

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The Fourth Amendment does not prohibit the obtaining of  

information revealed to a third party and conveyed by him to  

Government authorities. The Act's recordkeeping requirements do  

not alter these considerations so as to create a protectable Fourth  

Amendment interest of a bank depositor in the bank's records of his  

account.”  

However, Justice Brennan dissented and held that:  

“A bank customer's reasonable expectation is that, absent a  

compulsion by legal process, the matters he reveals to the bank will  

be utilized by the bank only for internal banking purposes... [A]  

depositor reveals many aspects of his personal affairs, opinions,  

habits, associations. Indeed, the totality of bank records provides a  

virtual current biography…Development of...sophisticated  

instruments have accelerated the ability of the government to  

intrude into areas which a person normally chooses to exclude from  

prying eyes and inquisitive minds. Consequently, judicial  

interpretations of the constitutional protection of individual privacy  

must keep pace with the perils created by these new devices.”  

 Continuing its trend of expansion of individual rights in the 1960s and 1970s,  

particularly in the domain of reproductive health - the right to contraceptives as well  

as the right to abortion, the decision in Carey v Population Services International257  

(1977) expanded these rights from adults to also include minors. In this case, a New  

York law banning sale of even non-prescription contraceptives by persons other than  

licensed pharmacists; sale or distribution to minors under sixteen; and contraceptive  

display and advertising was declared unconstitutional. Justice Brennan delivered the  

majority opinion of the Court and held that the Fourteenth Amendment is not for “adults  

alone” and “Minors, as well as adults, are protected by the Constitution”:  

                                                           257 431 US 678 (1977)

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“This right of personal privacy includes "the interest in  

independence in making certain kinds of important decisions." ...  

While the outer limits of this aspect of privacy have not been marked  

by the Court, it is clear that among the decisions that an individual  

may make without unjustified government interference are personal  

decisions "relating to marriage...; procreation...; contraception...;  

family relationships...; and childrearing and education...”  

It was further held that:  

“The decision whether or not to beget or bear a child is at the very  

heart of this cluster of constitutionally protected choices... This is  

understandable, for in a field that, by definition, concerns the most  

intimate of human activities and relationships, decisions whether to  

accomplish or to prevent conception are among the most private  

and sensitive…”  

The Court also held that the right to privacy may be limited by a regulation,  

which is governed by a sufficient ‘compelling state interest’.  

In Smith v Maryland258 (1979), it was held that installation and use of a ‘pen register’  

was not a “search” within the meaning of the Fourth Amendment, and hence no  

warrant was required.  Justice Blackmun delivered the majority (5: 4) opinion and held  

that the petitioner’s claim that he had a “legitimate expectation of privacy” could not  

be sustained:  

“First, we doubt that people in general entertain any actual  

expectation of privacy in the numbers they dial. All telephone  

users realize that they must "convey" phone numbers to the  

telephone company, since it is through telephone company  

                                                           258 442 US 735 (1979)

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switching equipment that their calls are completed. All subscribers  

realize, moreover, that the phone company has facilities for making  

permanent records of the numbers they dial, for they see a list of  

their long-distance (toll) calls on their monthly bills. In fact, pen  

registers and similar devices are routinely used by telephone  

companies "for the purposes of checking billing operations,  

detecting fraud, and preventing violations of law." (emphasis  

supplied)  

The majority adopted the “reasonable expectation of privacy” test as formulated by  

Justice Harlan in Katz and held as follows:  

“[The] inquiry, as Mr. Justice Harlan aptly noted in his Katz  

concurrence, normally embraces two discrete questions. The first  

is whether the individual, by his conduct, has "exhibited an actual  

(subjective) expectation of privacy"... whether... the individual has  

shown that "he seeks to preserve [something] as private"... The  

second question is whether the individual's subjective expectation  

of privacy is "one that society is prepared to recognize as  

reasonable,'"... whether... the individual's expectation, viewed  

objectively, is "justifiable" under the circumstances.  

Since the pen register was installed on telephone company  

property at the telephone company's central offices, petitioner  

obviously cannot claim that his "property" was invaded or that  

police intruded into a "constitutionally protected area."   

Thus the Court held that the petitioner in all probability entertained no actual  

expectation of privacy in the phone numbers he dialled, and that, even if he did, his  

expectation was not “legitimate.” However, the judgment also noted the limitations of  

the Katz test:   

“Situations can be imagined, of course, in which Katz' two-

pronged inquiry would provide an inadequate index of Fourth  

Amendment protection… In such circumstances, where an  

individual's subjective expectations had been "conditioned" by  

influences alien to well recognized Fourth Amendment freedoms,  

those subjective expectations obviously could play no meaningful

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role in ascertaining what the scope of Fourth Amendment protection  

was. “  

Justice Stewart wrote the dissent, joined by Justice Brennan and held that there was  

a legitimate expectation of privacy in this case:  

“...the numbers dialled from a private telephone -- like the  

conversations that occur during a call -- are within the constitutional  

protection recognized in Katz. It seems clear to me that information  

obtained by pen register surveillance of a private telephone is  

information in which the telephone subscriber has a legitimate  

expectation of privacy. The information captured by such  

surveillance emanates from private conduct within a person's home  

or office -- locations that without question are entitled to Fourth and  

Fourteenth Amendment protection. Further, that information is an  

integral part of the telephonic communication that, under Katz, is  

entitled to constitutional protection…”  

Justice Marshal dissented and opined on the dangers of permitting such surveillance,  

holding:  

“The use of pen registers, I believe, constitutes such an extensive  

intrusion. To hold otherwise ignores the vital role telephonic  

communication plays in our personal and professional  

relationships, as well as the First and Fourth Amendment interests  

implicated by unfettered official surveillance. Privacy in placing calls  

is of value not only to those engaged in criminal activity. The  

prospect of unregulated governmental monitoring will undoubtedly  

prove disturbing even to those with nothing illicit to hide. Many  

individuals, including members of unpopular political organizations  

or journalists with confidential sources, may legitimately wish to  

avoid disclosure of their personal contacts...   

Permitting governmental access to telephone records on less  

than probable cause may thus impede certain forms of political  

affiliation and journalistic endeavor that are the hallmark of a  

truly free society. Particularly given the Government's previous  

reliance on warrantless telephonic surveillance to trace reporters'  

sources and monitor protected political activity...  

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I am unwilling to insulate use of pen registers from independent  

judicial review.” (emphasis supplied)  

 In Planned Parenthood v Casey259 (1992), several Pennsylvania state statutory  

provisions regarding abortion such as spousal consent were challenged. The Court  

reaffirmed- what it called- the “essential holding”260 of Roe v Wade (supra), and  

observed:   

“...Our precedents “have respected the private realm of family life  

which the state cannot enter.” ... These matters, involving the most  

intimate and personal choices a person may make in a lifetime,  

choices central to personal dignity and autonomy, are central to the  

liberty protected by the Fourteenth Amendment. At the heart of  

liberty is the right to define one’s own concept of existence, of  

meaning, of the universe, and of the mystery of human life. Beliefs  

about these matters could not define the attributes of personhood  

were they formed under compulsion of the State…  

The woman’s right to terminate her pregnancy before viability is the  

most central principle of Roe v. Wade. It is a rule of law and a  

component of liberty we cannot renounce.”  

In Minnesota v Carter261 (1998), the question was whether the Fourth Amendment  

protected against the viewing by an outside police officer, through a drawn window  

blind, of the defendants’ bagging cocaine in an apartment. The Court answered this  

question in the negative. Chief Justice Rehnquist delivered the majority opinion of the  

                                                           259 505 US 833 (1992)  260 The essential holding of Roe, as summarized in Planned Parenthood, comprised of the following three parts:   (1) a recognition of a woman's right to choose to have an abortion before foetal viability and to obtain it without  undue interference from the State, whose pre-viability interests are not strong enough to support an abortion  prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a  confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies  endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outset  of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.  261 525 US 83 (1998)

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Court noting that “[t]he text of the Amendment suggests that its protections extend  

only to people in “their” houses.” The case was distinguished from Minnesota v  

Olson262 (1990), where the Supreme Court decided that an overnight guest in a house  

had the sort of expectation of privacy that the Fourth Amendment protects. The Court  

was of the view that while an overnight guest in a home may claim the protection of  

the Fourth Amendment, one who is merely present with the consent of the  

householder may not. The respondents, in this case, were not overnight guests, but  

were present for a business transaction and were only in the home for a few hours.  

The Court held:  

“Property used for commercial purposes is treated differently  for Fourth Amendment purposes from residential property.  "An expectation of privacy in commercial premises, however,  is different from, and indeed less than, a similar expectation in  an individual's home."...  

And while it was a "home" in which respondents were present, it  was not their home…  

the purely commercial nature of the transaction engaged in here,  the relatively short period of time on the premises, and the lack of  any previous connection between respondents and the  householder, all lead us to conclude .... any search which may have  occurred did not violate their Fourth Amendment rights.” (emphasis  supplied)  

Justice Ginsburg wrote the dissenting opinion joined by Justice Stevens and Justice  

Souter, and held that:   

“Our decisions indicate that people have a reasonable expectation  

of privacy in their homes in part because they have the prerogative  

                                                           262 495 US 91 (1990)

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to exclude others… Through the host’s invitation, the guest gains a  

reasonable expectation of privacy in the home. Minnesota v. Olson,  

495 U. S. 91 (1990), so held with respect to an overnight guest. The  

logic of that decision extends to shorter term guests as well.”   

In Kyllo v United States263 (2001), the Court held (5:4 majority) that the thermal  

imaging of the house of a person suspected of growing marijuana was a violation of  

the right to privacy. Justice Scalia delivered the opinion of the Court and held that  

there is no distinction between “off-the-wall” and “through-the-wall” surveillance as  

both lead to an intrusion into an individual’s privacy:   

“Limiting the prohibition of thermal imaging to “intimate  

details” would not only be wrong in principle; it would be  

impractical in application, failing to provide “a workable  

accommodation between the needs of law enforcement and  

the interests protected by the Fourth Amendment,”…   

We…would have to develop a jurisprudence specifying which home  

activities are “intimate” and which are not. And even when (if ever)  

that jurisprudence were fully developed, no police officer would be  

able to know in advance whether his through-the-wall surveillance  

picks up “intimate” details–and thus would be unable to know in  

advance whether it is constitutional…” (emphasis supplied)  

It was concluded that even though no “significant” compromise of the homeowner’s  

privacy had occurred due to the thermal imaging, “the long view, from the original  

meaning of the Fourth Amendment” must be taken forward.  

                                                           263 533 US 27 (2001)

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In Lawrence v Texas264, the Court in a 6:3 decision struck down the sodomy law in  

Texas and by extension invalidated sodomy laws in 13 other states, making same-

sex sexual activity legal in every state and territory of the United States. The Court  

overturned its previous ruling on the same issue in the 1986 case, Bowers v  

Hardwick265 (1986), where it upheld a challenged Georgia statute and did not find a  

constitutional protection of sexual privacy. Justice Anthony Kennedy wrote the  

majority opinion (6: 3 decision) and held that:   

“The petitioners are entitled to respect for their private lives. The  

State cannot demean their existence or control their destiny by  

making their private sexual conduct a crime… It is a promise of the  

Constitution that there is a realm of personal liberty which the  

government may not enter… The Texas statute furthers no  

legitimate state interest which can justify its intrusion into the  

personal and private life of the individual.”  

Informational privacy was the core issue in NASA v Nelson266 (2011). The Court held  

unanimously that NASA’s background checks of contract employees did not violate  

any constitutional privacy right. The employees had argued that their constitutional  

right to privacy as envisaged in previous US Supreme Court judgments namely  

Whalen v Roe267 (1977) and Nixon v Administrator of General Services268 (1977),  

                                                           264 539 US 558 (2003)  265 478 US 186 (1986)  266 562 US 134 (2011)  267 429 US 589 (1977). In this case, for the first time, the Court explicitly recognized an individual’s interest in  nondisclosure of information. The Court chose to address the status of privacy in the Constitution, underlining  that the constitutional right to privacy remains largely undefined and then identified the types of constitutionally  protected privacy interests as follows: “The cases sometimes characterized as protecting ‘privacy’ have in fact  involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal  matters, and another is the interest in independence in making certain kinds of important decisions.”  268 433 US 425 (1977). In this case, the former President of US, Nixon, was challenging the Presidential  Recordings and Material Preservation Act, 1974 on the ground that it violated his right of privacy, as there would

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was violated by background checks. The majority judgment delivered by Justice Alito,  

decided the case assuming that there existed a constitutional right to privacy. The  

Court held that:  

“We hold, however, that the challenged portions of the  

Government’s background check do not violate this right in the  

present case. The Government’s interests as employer and  

proprietor in managing its internal operations, combined with the  

protections against public dissemination provided by the Privacy  

Act of 1974, satisfy any “interest in avoiding disclosure” that may  

“arguably ha[ve] its roots in the Constitution… The Government has  

good reason to ask employees about their recent illegal-drug use.”  

The majority also rejected all the contentions regarding the misuse of collected data  

and held:   

“… the mere possibility that security measures will fail provides no  

“proper ground” for a broad-based attack on government  

information-collection practices. Ibid. Respondents also cite a  

portion of SF–85 that warns of possible disclosure “[t]o the news  

media or the general public.” App. 89. By its terms, this exception  

allows public disclosure only where release is “in the public  

interest” and would not result in “an unwarranted invasion of  

personal privacy.” Ibid. Respondents have not cited any  

example of such a disclosure, nor have they identified any  

plausible scenario in which their information might be unduly  

disclosed under this exception… In light of the protection  

provided by the Privacy Act’s nondisclosure requirement, and  

because the challenged portions of the forms consist of  

reasonable inquiries in an employment background check, we  

conclude that the Government’s inquiries do not violate a  

constitutional right to informational privacy.” (emphasis  

supplied)  

                                                           be intrusion through the screening of his documents. Nixon’s plea was rejected by the Court, which held held  that “any intrusion [against privacy] must be weighed against the public interest”.

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Justice Scalia, in a concurring opinion joined by Justice Thomas, agreed that the  

background checks did not violate any constitutional rights, but argued that the Court  

should have settled the constitutional privacy question in the negative. The view held  

was that there exists no constitutional right to informational privacy. Scalia J. criticized  

the Court's decision to evade the constitutional question, stating that:   

“If, on the other hand, the Court believes that there is a  

constitutional right to informational privacy, then I fail to see the  

minimalist virtues in delivering a lengthy opinion analyzing that right  

while coyly noting that the right is “assumed” rather than  

“decided”… The Court decides that the Government did not  

violate the right to informational privacy without deciding  

whether there is a right to informational privacy, and without  

even describing what hypothetical standard should be used to  

assess whether the hypothetical right has been violated.”  

(emphasis supplied)  

In United States v Jones269 (2012), it was held unanimously that installing a Global  

Positioning System (GPS) tracking device on a vehicle and using the device to monitor  

the vehicle's movements constitutes a search under the Fourth Amendment.  

However, the judges were split 5:4 as to the fundamental reasons behind the  

conclusion. Justice Scalia delivered the majority judgment, applying the trespass test.  

It was held that the Government’s physical intrusion onto the defendant's car for the  

purpose of obtaining information constituted trespass and therefore a “search”. Justice  

                                                           269 565 US 400 (2012)

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Scalia, however, left unanswered the question surrounding the privacy implications of  

a warrantless use of GPS data without physical intrusion.  

 Justice Sonia Sotomayor, concurred with Justice Scalia, but addressed the privacy  

aspects of the judgment. Justice Sotomayor agreed with Justice Alito’s concurrence  

that “physical intrusion is now unnecessary to many forms of surveillance”, and held  

that “[i]n cases of electronic or other novel modes of surveillance that do not depend  

upon a physical invasion on property, the majority opinion’s trespassory test may  

provide little guidance”.  It was further observed:  

“GPS monitoring generates a precise, comprehensive record of a  

person’s public movements that reflects a wealth of detail about her  

familial, political, professional, religious, and sexual associations.  

Disclosed in [GPS] data… will be trips the indisputably private  

nature of which takes little imagination to conjure: trips to the  

psychiatrist, the plastic surgeon, the abortion clinic, the AIDS  

treatment center, the strip club, the criminal defense attorney, the  

by-the-hour motel, the union meeting, the mosque, synagogue or  

church, the gay bar and on and on… The Government can store  

such records and efficiently mine them for information years into the  

future… And because GPS monitoring is cheap in comparison to  

conventional surveillance techniques and, by design, proceeds  

surreptitiously, it evades the ordinary checks that constrain abusive  

law enforcement practices: “limited police resources and  

community hostility”…  

The net result is that GPS monitoring—by making available at  

a relatively low cost such a substantial quantum of intimate  

information about any person whom the Government, in its  

unfettered discretion, chooses to track—may “alter the  

relationship between citizen and government in a way that is  

inimical to democratic society”.” (emphasis supplied)  

Justice Sotomayor concluded, by stating:  

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“[I] doubt that people would accept without complaint the  

warrantless disclosure to the Government of a list of every Web site  

they had visited [or phone numbers dialled]... I would not assume  

that all information voluntarily disclosed to some member of the  

public for a limited purpose is, for that reason alone, disentitled to  

Fourth Amendment protection.”   

In Florida v Jardines270 (2013), the Court held that police use of a trained detection  

dog to sniff for narcotics on the front porch of a private home is a “search” within the  

meaning of the Fourth Amendment to the US Constitution, and therefore, without  

consent, requires both probable cause and a search warrant. Justice Scalia who  

delivered the opinion of the Court held as follows:   

“We… regard the area “immediately surrounding and  

associated with the home”—…..as “part of the home itself for  

Fourth Amendment purposes.” ….This area around the home is  

“intimately linked to the home, both physically and  

psychologically,” and is where “privacy expectations are most  

heightened”.” (emphasis supplied)  

Justice Kagan, in a concurring opinion, wrote:  

“Like the binoculars, a drug-detection dog is a specialized device  

for discovering objects not in plain view (or plain smell). And as in  

the hypothetical above, that device was aimed here at a home—

the most private and inviolate (or so we expect) of all the  

places and things the Fourth Amendment protects… the  

device is not “in general public use,” training it on a home  

violates our “minimal expectation of privacy”—an expectation  

“that exists, and that is acknowledged to be reasonable”.”  

(emphasis supplied)  

                                                           270 569 US 1 (2013)

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Three years ago, in Riley v California271 (2014), the Court unanimously held that the  

warrantless search and seizure of digital contents of a cell phone during an arrest is  

unconstitutional. Chief Justice Roberts delivered the opinion of the Court and  

commented on the impact on privacy in an era of cell phones:  

“Before cell phones, a search of a person was limited by  

physical realities and tended as a general matter to constitute  

only a narrow intrusion on privacy...the possible intrusion on  

privacy is not physically limited in the same way when it comes  

to cell phones…Data on a cell phone can also reveal where a  

person has been. Historic location information is a standard  

feature on many smart phones and can reconstruct someone’s  

specific movements down to the minute, not only around town  

but also within a particular building… Mobile application  

software on a cell phone, or “apps,” offer a range of tools for  

managing detailed information about all aspects of a person’s  

life…  

Modern cell phones are not just another technological  

convenience. With all they contain and all they may reveal,  

they hold for many Americans “the privacies of life”... The fact  

that technology now allows an individual to carry such  

information in his hand does not make the information any less  

worthy of the protection for which the Founders fought. Our  

answer to the question of what police must do before searching a  

cell phone seized incident to an arrest is accordingly simple— get  

a warrant.” (emphasis supplied)  

In Obergefell v Hodges272, the Court held in a 5:4 decision that the fundamental right  

to marry is guaranteed to same-sex couples by both the Due Process Clause and the  

Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy authored  

the majority opinion (joined by Justices Ginsburg, Breyer, Sotamayor and Kagan):  

                                                           271 573 US __ (2014)  272 576 US __ (2015)

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“Indeed, the Court has noted it would be contradictory to  

recognize a right of privacy with respect to other matters of  

family life and not with respect to the decision to enter the  

relationship that is the foundation of the family in our society.”  

(emphasis supplied)  

The development of the jurisprudence on the right to privacy in the United States of  

America shows that even though there is no explicit mention of the word ‘privacy’ in  

the Constitution, the courts of the country have not only recognised the right to privacy  

under various Amendments of the Constitution but also progressively extended the  

ambit of protection under the right to privacy. In its early years, the focus was on  

property and protection of physical spaces that would be considered private such as  

an individual’s home. This ‘trespass doctrine’ became irrelevant when it was held that  

what is protected under the right to privacy is “people, not places”. The ‘reasonable  

expectation of privacy’ test has been relied on subsequently by various other  

jurisdictions while developing the right to privacy. Having located the right to privacy  

in the ‘person’, American jurisprudence on the right to privacy has developed to shield  

various private aspects of a person’s life from interference by the state - such as  

conscience, education, personal information, communications and conversations,  

sexuality, marriage, procreation, contraception, individual beliefs, thoughts and  

emotions, political and other social groups. Various judgments of the Court have also  

analysed technological developments which have made surveillance more pervasive  

and affecting citizens’ privacy. In all these cases, the Court has tried to balance the  

interests of the individual in maintaining the right to privacy with the interest of the  

State in maintaining law and order. Decisions of the Supreme Court decriminalizing

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consensual sexual activity between homosexuals and guaranteeing same-sex  

couples the right to marry indicate that the right to privacy is intrinsic to the  

constitutional guarantees of liberty and equal protection of laws.   

(iii) Constitutional right to privacy in South Africa  

In South Africa, the right to privacy has been enshrined in Section 14 of the Bill of  

Rights in the 1996 Constitution. Section 14 provides that:  

“14. Privacy.-Everyone has the right to privacy, which includes the right  

not to have-  

(a) their person or home searched;  

(6) their property searched;  

(c) their possessions seized; or  

(d) the privacy of their communications infringed.”  

In National Media Ltd v Jooste273 (1996), Justice Harms defined privacy in the  

following terms:   

“Privacy is an individual condition of life characterised by exclusion  

from the public and publicity. The condition embraces all those  

personal facts which a person concerned has determined him to be  

excluded from the knowledge of outsiders and in respect of which he  

has the will that they be kept private”  

On the ambit of the right to privacy, the Court held that:  

“A right to privacy encompasses the competence to determine the  

destiny of private facts…  

The individual concerned is entitled to dictate the ambit of disclosure ...  

                                                           273 1996 (3) SA 262 (A)

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the purpose and method [of] the disclosure... when and under what  

conditions private facts may be made public. A contrary view will place  

undue constraints upon the individual's so-called “absolute rights of  

personality”…  

It will also mean that rights of personality are of a lower order than real  

or personal rights”.   

In Bernstein v Bester and Others274 (1996), the South African Supreme Court  

decided on a challenge to the constitutionality of certain sections of the Companies  

Act,  on the ground that examination under these sections violated the general right  

to personal privacy (section 13). It was held that the provisions were not in breach of  

the Constitution. Justice Ackermann expounded upon the concept of privacy as  

follows:  

“The scope of privacy has been closely related to the concept of identity  and ... [that] the right… [is] based on a notion of the unencumbered  self, but on the notion of what is necessary to have one’s own  autonomous identity”.    

The Court observed that like every other right, the right to privacy also has its limits:               

“[67] In the context of privacy it is only the inner sanctum of a person,  

such as his/her family life, sexual preference and home environment,  

which is shielded from erosion by conflicting rights of the community.  

This implies that community rights and the rights of fellow members  

place a corresponding obligation on a citizen, thereby shaping the  

abstract notion of individualism towards identifying a concrete member  

of civil society. Privacy is acknowledged in the truly personal realm, but  

as a person moves into communal relations and activities such as  

business and social interaction, the scope of personal space shrinks  

accordingly.”  

                                                           274 1996 (2) SA 751 (CC)

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The constitutional validity of laws making sodomy an offence was challenged in  

National Coalition for Gay and Lesbian Equality v Minister of Justice275 (1999).  

It was held that the common law offence of sodomy was inconsistent with the  

Constitution of the Republic of South Africa, 1996. Ackermann J. described how  

discrimination leads to invasion of privacy and held that:  

“Privacy recognises that we all have a right to a sphere of private  

intimacy and autonomy which allows us to establish and nurture human  

relationships without interference from the outside community. The way  

in which we give expression to our sexuality is at the core of this area  

of private intimacy. If, in expressing our sexuality, we act consensually  

and without harming one another, invasion of that precinct will be a  

breach of our privacy…”  

Sachs J. discussed the interrelation between equality and privacy and held that:   

“...equality and privacy cannot be separated, because they are both  

violated simultaneously by anti-sodomy laws. In the present matter,  

such laws deny equal respect for difference, which lies at the heart of  

equality, and become the basis for the invasion of privacy. At the same  

time, the negation by the state of different forms of intimate personal  

behaviour becomes the foundation for the repudiation of equality.”   

On the meaning of ‘autonomy’, the Court observed that:   

“Autonomy must mean far more than the right to occupy an  

envelope of space in which a socially detached individual can act  

freely from interference by the state. What is crucial is the nature  

of the activity, not its site. While recognising the unique worth of each  

person, the Constitution does not presuppose that a holder of rights  

is as an isolated, lonely and abstract figure possessing a disembodied  

and socially disconnected self. It acknowledges that people live in  

their bodies, their communities, their cultures, their places and  

their times. ...It is not for the state to choose or to arrange the choice  

                                                           275 1999 (1) SA 6 (CC)

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of partner, but for the partners to choose themselves.” (emphasis  

supplied)  

Justice Sachs noted that the motif which links and unites equality and privacy, and  

which runs right through the protections offered by the Bill of Rights, is dignity.  

In Investigating Directorate: Serious Offences v Hyundai Motor Distributors  

Ltd276 (2001), the Court was concerned with the constitutionality of the provisions of  

the National Prosecuting Authority Act that authorised the issuing of warrants of  

search and seizure for purposes of a “preparatory investigation”.  

Langa J. delivered judgment on the right to privacy of juristic persons and held that:  

“... privacy is a right which becomes more intense the closer it moves  

to the intimate personal sphere of the life of human beings, and less  

intense as it moves away from that core. This understanding of the right  

flows... from the value placed on human dignity by the Constitution.  

Juristic persons are not the bearers of human dignity. Their privacy  

rights, therefore, can never be as intense as those of human beings.  

However, this does not mean that juristic persons are not protected by  

the right to privacy. Exclusion of juristic persons would lead to the  

possibility of grave violations of privacy in our society, with serious  

implications for the conduct of affairs.”   

Highlighting the need to balance interests of the individual and the State, it was held  

that:    

“[54] ...Search and seizure provisions, in the context of a preparatory  

investigation, serve an important purpose in the fight against crime.  

That the state has a pressing interest which involves the security and  

freedom of the community as a whole is beyond question. It is an  

objective which is sufficiently important to justify the limitation of the  

                                                           276 2001 (1) SA 545 (CC)

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right to privacy of an individual in certain circumstances….On the other  

hand, state officials are not entitled without good cause to invade the  

premises of persons for purposes of searching and seizing property;  

...A balance must therefore be struck between the interests of the  

individual and that of the state, a task that lies at the heart of the  

inquiry into the limitation of rights.” (emphasis supplied)  

In Minister of Home Affairs and Another v Fourie and Another277 (2006), the  

Constitutional Court of South Africa ruled unanimously that same-sex couples have a  

constitutional right to marry. The judgment delivered by Justice Sachs, held that:  

“Section 9(1) of the Constitution provides: “Everyone is equal before  

the law and has the right to equal protection and benefit of the law.”...  

Sections 9(1) and 9(3) cannot be read as merely protecting same-sex  

couples from punishment or stigmatisation. They also go beyond  

simply preserving a private space in which gay and lesbian  

couples may live together without interference from the state.  

Indeed, what the applicants in this matter seek is not the right to  

be left alone, but the right to be acknowledged as equals and to  

be embraced with dignity by the law…   

It is demeaning to adoptive parents to suggest that their family is  

any less a family and any less entitled to respect and concern than  

a family with procreated children. It is even demeaning of a couple  

who voluntarily decide not to have children or sexual relations  

with one another; this being a decision entirely within their  

protected sphere of freedom and privacy...” (emphasis supplied)  

In NM and Others v Smith and Others278 (2007), the names of three women who  

were HIV positive were disclosed in a biography. They alleged that the publication,  

without their prior consent, violated their rights to privacy, dignity and psychological  

integrity. The Court by majority held that the respondents were aware that the  

applicants had not given their express consent but had published their names, thereby  

                                                           277 2006 (1) SA 524 (CC).   278 2007 (5) SA 250 (CC).  

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violating their privacy and dignity rights. Justice Madala delivered the majority  

judgment on the basis of the value of privacy and confidentiality in medical information  

and held that:  

“Private and confidential medical information contains highly sensitive  

and personal information about individuals. The personal and intimate  

nature of an individual’s health information, unlike other forms of  

documentation, reflects delicate decisions and choices relating to  

issues pertaining to bodily and psychological integrity and personal  

autonomy…   

Individuals value the privacy of confidential medical information  

because of the vast number of people who could have access to the  

information and the potential harmful effects that may result from  

disclosure. The lack of respect for private medical information and its  

subsequent disclosure may result in fear jeopardising an individual’s  

right to make certain fundamental choices that he/she has a right to  

make. There is therefore a strong privacy interest in maintaining  

confidentiality.”  

The decision of the Court was that there must be a pressing social need for the right  

to privacy to be interfered with and that there was no such compelling public interest  

in this case.  

 In the dissenting opinion, Justice O’Regan held that the publication of the names and  

HIV status of the women was neither intentional nor negligent. In that view, the  

respondents had assumed that consent was given because the applicants’ names  

and HIV status were published in a publication, with no disclaimer regarding their  

consent to the contrary. While elaborating on the constitutional right of privacy, the  

Court held that:  

“... although as human beings we live in a community and are in a  

real sense both constituted by and constitutive of that community,

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we are nevertheless entitled to a personal sphere from which we  

may and do exclude that community. In that personal sphere, we  

establish and foster intimate human relationships and live our daily  

lives. This sphere in which to pursue our own ends and interests in  

our own ways, although often mundane, is intensely important to  

what makes human life meaningful.”   

According to the decision, there are two inter-related reasons for the constitutional  

protection of privacy- one flows from the “constitutional conception of what it means  

to be a human being” and the second from the “constitutional conception of the state”:  

 “An implicit part of [the first] aspect of privacy is the right to choose  

what personal information of ours is released into the public space.  

The more intimate that information, the more important it is in  

fostering privacy, dignity and autonomy that an individual  

makes the primary decision whether to release the  

information. That decision should not be made by others. This  

aspect of the right to privacy must be respected by all of us, not only  

the state.  

…Secondly, we value privacy as a necessary part of a  

democratic society and as a constraint on the power of the  

state... In authoritarian societies, the state generally does not afford  

such protection. People and homes are often routinely searched  

and the possibility of a private space from which the state can be  

excluded is often denied. The consequence is a denial of liberty and  

human dignity. In democratic societies, this is impermissible.”  

(emphasis supplied)  

The limits of the right to privacy and the need to balance it with other rights emerge  

from the following observations:  

“Recognition of legitimate limits on the inviolability of personal  

space, however, does not mean that the space is not worthy of  

protection. The Constitution seeks to ensure that rights reinforce  

one another in a constructive manner in order to promote human  

rights generally. At times our Constitution recognises that a balance  

has to be found to provide protection for the different rights.”   

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On the inter-relationship between the right to privacy, liberty and dignity, the Court  

observed that:  

“The right to privacy recognises the importance of protecting the  

sphere of our personal daily lives from the public. In so doing, it  

highlights the inter-relationship between privacy, liberty and  

dignity as the key constitutional rights which construct our  

understanding of what it means to be a human being. All these  

rights are therefore inter-dependent and mutually reinforcing.  

We value privacy for this reason at least – that the constitutional  

conception of being a human being asserts and seeks to foster the  

possibility of human beings choosing how to live their lives within  

the overall framework of a broader community.” (emphasis  

supplied)  

The interim as well as the Final Constitution of South Africa contain explicit provisions  

guaranteeing the right to privacy. The Judges of South African Supreme Court have  

given an expansive meaning to the right, making significant inter-linkages between  

equality, privacy and dignity. In doing so, it has been acknowledged that the right to  

privacy does not exist in a vacuum, its contravention having a significant bearing on  

other citizen rights as well. Such an interpretation may prove to have a catalytic effect  

on a country transitioning from an apartheid state to a democratic nation.   

(iv) Constitutional right to privacy in Canada  

Although the Canadian Charter of Rights and Freedoms of 1982 (“the Charter”) does  

not explicitly provide for a right to privacy, certain sections of the Charter have been  

relied on by the Supreme Court of Canada to recognize a right to privacy. Most

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notably, Section 8279 (the Canadian version of the Fourth Amendment of the US  

Constitution) has been employed in this respect. Privacy issues have also been  

recognized in respect of Section 7280 of the Charter. In 1983, the Privacy Act was  

enacted to regulate how federal government collects, uses and discloses personal  

information.281 The Personal Information Protection and Electronic Documents Act  

(PIPEDA) governs how private sector organisations collect, use and disclose personal  

information in the course of commercial activities  

 One of the landmark cases on the right to privacy was Hunter v Southam Inc282  

(1984). This was also the first Supreme Court of Canada decision to consider Section  

8 of the Charter. In this case, the Combines Investigation Act had authorized several  

civil servants to enter the offices of Southam Inc and examine documents. The  

company claimed that this Act violated Section 8 of the Canadian Charter.  The Court  

unanimously held that the Combines Investigation Act violated the Charter as it did  

not provide an appropriate standard for administering warrants.  

 Dickson J. wrote the opinion of the Court and observed that the Canadian Charter is  

a “purposive document” whose purpose is to “guarantee and to protect, within the  

limits of reason, the enjoyment of the rights and freedoms it enshrines” and to  

                                                           279 Section 8 of the Charter provides as follows: “Everyone has the right to be secure against unreasonable  search or seizure.”  280 Section 7 of the Canadian Charter deals with life, liberty and security of person and states that: “Everyone has  the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance  with the principles of fundamental justice.”  281 In Lavigne v. Canada (Office of the Commissioner of Official Languages),  [2002] 2 SCR 773, the Supreme  Court of Canada recognised the Privacy Act as having a "quasi-constitutional" status, as it is “closely linked to  the values and rights set out in the Constitution”. The Court also stated that the "The Privacy Act is a reminder  of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society”.  282 [1984] 2 SCR 145

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constrain governmental action inconsistent with those rights and freedoms. The Court  

held that since Section 8 is an entrenched constitutional provision, it was “not  

vulnerable to encroachment by legislative enactments in the same way as common  

law protections.”   

 The Court held that the purpose of Section 8 is to protect an individual's reasonable  

expectation of privacy but right to privacy must be balanced against the government’s  

duty to enforce the law. It was further held that:   

“The guarantee of security from unreasonable search and seizure only  

protects a reasonable expectation. This limitation on the right  

guaranteed by s. 8, whether it is expressed negatively as freedom from  

"unreasonable" search and seizure, or positively as an entitlement to a  

"reasonable" expectation of privacy, indicates that an assessment must  

be made as to whether in a particular situation the public's interest in  

being left alone by government must give way to the government's  

interest in intruding on the individual's privacy in order to advance its  

goals, notably those of law enforcement.”  

In Her Majesty, The Queen v Brandon Roy Dyment283 (1988), a patient had met  

with an accident on a highway. A doctor collected a sample of blood from his wound.  

The blood sample was taken for medical purposes but was given to a police officer.  

As a result of an analysis carried out by the police officer, the patient was charged  

with impaired driving. The Court held that the seizing of blood taken for medical  

purposes was a violation of Section 8 of the Charter and that the spirit of the Charter  

“must not be constrained by narrow legalistic classifications based on notions of  

property”. It was further held:  

                                                           283 [1988] 2 SCR 417

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“[L]egal claims to privacy in this sense were largely confined to the  

home. But… [t]o protect privacy only in the home ... is to shelter  

what has become, in modern society, only a small part of the  

individual's daily environmental need for privacy...   

Privacy is at the heart of liberty in a modern state...Grounded in  

man's physical and moral autonomy, privacy is essential for the  

well-being of the individual. For this reason alone, it is worthy of  

constitutional protection, but it also has profound significance for  

the public order. The restraints imposed on government to pry  

into the lives of the citizen go to the essence of a democratic  

state.” (emphasis supplied)  

On the importance of informational privacy, it was held:  

 “This notion of privacy derives from the assumption that all  

information about a person is in a fundamental way his own, for him  

to communicate or retain for himself as he sees fit...  

In modern society, especially, retention of information about oneself  

is extremely important. We may, for one reason or another, wish or  

be compelled to reveal such information, but situations abound  

where the reasonable expectations of the individual that the  

information shall remain confidential to the persons to whom, and  

restricted to the purposes for which it is divulged, must be  

protected.”  

Justice La Forest wrote on the importance of consent and held that “the use of a  

person's body without his consent to obtain information about him, invades an area of  

personal privacy essential to the maintenance of his human dignity.”   

     The Court found that the patient had a “well-founded” and “reasonable” expectation  

of privacy that his blood sample, collected by the doctor, would be used for medical  

purposes only and that such expectation “is intended to protect people not things”. It  

was held that:

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“In the present case, however, the respondent may, for some  

purposes perhaps, be deemed to have impliedly consented to a  

sample being taken for medical purposes, but he retained an  

expectation that his privacy interest in the sample continue past the  

time of its taking…Under these circumstances, the sample was  

surrounded by an aura of privacy meriting Charter protection. For  

the state to take it in violation of a patient's right to privacy  

constitutes a seizure for the purposes of s. 8.”   

R v Plant284 (1993) is a leading decision of the Supreme Court of Canada on the  

protection of personal information under the Charter. In this case, a police officer, on  

the basis of information that marijuana was being grown in an area, accessed the  

electrical utility’s computer system and discovered that a particular house was  

consuming an extremely high amount of electricity. Two officers then performed a  

warrantless perimeter search of the property and observed that the basement  

windows were covered with something opaque and a that a vent had been blocked  

using a plastic bag. On the basis of this information, the police obtained a warrant to  

search the home and discovered over a hundred seedling marijuana plants. The  

accused was charged with cultivation of marijuana and possession for the purpose of  

trafficking. The issue was whether the warrantless perimeter search of his home and  

the seizure of electricity consumption records violated his right against unreasonable  

search and seizure under section 8 of the Charter.  

                                                           284 [1993] 3 S.C.R. 281

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The judgment delivered by Justice Sopinka relied on a part of the United States v  

Miller285 decision, that in order to be constitutionally protected the information must  

be of a “personal and confidential” nature and held that:  

“In fostering the underlying values of dignity, integrity and autonomy, it  

is fitting that s. 8 of the Charter should seek to protect a biographical  

core of personal information which individuals in a free and democratic  

society would wish to maintain and control from dissemination to the  

state. This would include information which tends to reveal intimate  

details of the lifestyle and personal choices of the individual.”  

The Court held that the perimeter search violated the Charter and that the seizure of  

consumption records was not in violation of Section 8. This decision was based on  

the ground that the pattern of electricity consumption revealed as a result of computer  

investigations could not be said to reveal intimate details since “electricity  

consumption reveals very little about the personal lifestyle or private decisions.”  

 In Her Majesty, The Queen v Walter Tessling286 (2004), the Supreme Court of  

Canada held that the use of thermal imaging by the police in the course of an  

investigation of a suspect's property did not constitute a violation of the accused's  

right to a reasonable expectation of privacy under Section 8 of the Canadian Charter.  

 On the reasonable expectation of privacy, it was held that the totality of circumstances  

need to be considered with particular emphasis on both the existence of a subjective  

expectation of privacy, and the objective reasonableness of the expectation. The  

Court ruled that the cases of privacy interests (protected by S. 8 of the Canadian  

                                                           285 425 US 435 (1976)  286 (2004) SCC 67

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Charter) need to be distinguished between personal privacy, territorial privacy and  

informational privacy.”  

The Court relied on Justice Sopinka’s understanding of the scope of the protection of  

informational privacy in R v Plant (supra) and held that the information generated by  

FLIR imaging did not reveal a “biographical core of personal information” or “intimate  

details of [his] lifestyle”, and therefore section 8 had not been violated.  

The decision in R v Spencer287 (2014) was related to informational privacy. In this  

case, the appellant used an online software to download child pornography onto a  

computer and shared it publicly. The police requested subscriber information  

associated with an IP address from the appellant’s Internet Service Provider and on  

the basis of it, searched the computer used by him. The Canadian Supreme Court  

unanimously ruled that the request for an IP address infringed the Charter's guarantee  

against unreasonable search and seizure. It was held that the appellant had a  

reasonable expectation of privacy. In doing so, it assessed whether there is a  

“reasonable expectation of privacy” in the “totality of the circumstances”, which  

includes “the nature of the privacy interests implicated by the state action” and “factors  

more directly concerned with the expectation of privacy, both subjectively and  

objectively viewed, in relation to those interests”. It was further held:   

“...factors that may be considered in assessing the reasonable  

expectation of privacy can be grouped under four main headings for  

analytical convenience: (1) the subject matter of the alleged  

search; (2) the claimant's interest in the subject matter; (3) the  

claimant's subjective expectation of privacy in the subject  

                                                           287 (2014) SCC 43

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matter; and (4) whether this subjective expectation of privacy  

was objectively reasonable, having regard to the totality of the  

circumstances.”  (emphasis supplied)  

 The issue in the case was whether there is a privacy interest in subscriber information  

with respect to computers used in homes for private purposes. The Court applied a  

broad approach in understanding the online privacy interests and held that:  

“Privacy is admittedly a "broad and somewhat evanescent concept"...  

[T]he Court has described three broad types of privacy interests -  

territorial, personal, and informational - which, while often overlapping,  

have proved helpful in identifying the nature of the privacy interest or  

interests at stake in particular situations…”  

The Court found that the nature of appellant’s privacy interest in subscriber  

information relating to a computer used privately was primarily an informational  

one and held:  

 “... the identity of a person linked to their use of the Internet must be  

recognized as giving rise to a privacy interest beyond that inherent in  

the person’s name, address and telephone number found in the  

subscriber information.”  

It then set out three key elements of informational privacy: privacy as secrecy,  

privacy as control, and privacy as anonymity. It further emphasised on the  

importance of anonymity in informational privacy, particularly in the age of the  

Internet and held that:  

 “... anonymity may, depending on the totality of the circumstances, be  

the foundation of a privacy interest that engages constitutional  

protection against unreasonable search and seizure...”  

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Though the Court stopped short of recognizing an absolute right to anonymity, it held  

that “anonymous Internet activity engages a high level of informational privacy”. The  

Court further held that:   

 “The disclosure of this information will often amount to the identification  of a user with intimate or sensitive activities being carried out online,  usually on the understanding that these activities would be anonymous.  A request by a police officer that an ISP voluntarily disclose such  information amounts to a search.”      

 The Canadian Supreme Court has used provisions of the Charter to expand the  

scope of the right to privacy, used traditionally to protect individuals from an invasion  

of their property rights, to an individual’s “reasonable expectation of privacy”. The  

right to privacy has been held to be more than just a physical right as it includes the  

privacy in information about one’s identity. Informational privacy has frequently been  

addressed under Section 8 of the Charter. Canadian privacy jurisprudence has  

developed with the advent of technology and the internet. Judicial decisions have  

significant implications for internet/digital privacy.     

(v) Privacy under The European Convention on Human Rights and the European Charter  

In Europe, there are two distinct but related frameworks to ensure the protection of  

the right of privacy. The first is the European Convention on Human Rights (ECHR),  

an international agreement to protect human rights and fundamental freedoms in  

Europe. The second is the Charter of Fundamental Rights of the European Union  

(CFREU), a treaty enshrining certain political, social, and economic rights for the

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European Union. Under ECHR (“the Convention”), the European Court of Human  

Rights (ECtHR), also known as the ‘Strasbourg Court’, is the adjudicating body, which  

hears complaints by individuals on alleged breaches of human rights by signatory  

states. Similarly, under CFREU (“the Charter), the Court of Justice of the European  

Union (CJEU), also called the ‘Luxembourg Court’, is the chief judicial authority of the  

European Union and oversees the uniform application and interpretation of European  

Union law, in co-operation with the national judiciary of the member states.  

Article 8 of the ECHR provides that:   

“Right to respect for private and family life  

1. Everyone has the right to respect for his private and family life, his  

home and his correspondence.  

2. There shall be no interference by a public authority with the exercise  

of this right except such as is in accordance with the law and is  

necessary in a democratic society in the interests of national security,  

public safety or the economic well-being of the country, for the  

prevention of disorder or crime, for the protection of health or morals,  

or for the protection of the rights and freedoms of others.”  

Under the Charter, the relevant provisions are:   

Article 7   

Respect for private and family life  

Everyone has the right to respect for his or her private and family life,  

home and communications.  

Article 8   

Protection of personal data  

1. Everyone has the right to the protection of personal data concerning  

him or her.

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2. Such data must be processed fairly for specified purposes and on  

the basis of the consent of the person concerned or some other  

legitimate basis laid down by law. Everyone has the right of access to  

data which has been collected concerning him or her, and the right to  

have it rectified.   

3. Compliance with these rules shall be subject to control by an  

independent authority.  

Article 52    

Scope of guaranteed rights  

1. Any limitation on the exercise of the rights and freedoms recognised  

by this Charter must be provided for by law and respect the essence of  

those rights and freedoms. Subject to the principle of proportionality,  

limitations may be made only if they are necessary and genuinely meet  

objectives of general interests recognised by the Union of the need to  

protect the rights and freedoms of others.   

2. Rights recognised by this Charter which are based on the  

Community Treaties or the Treaty on European Union shall be  

exercised under the conditions and within the limits defined by those  

Treaties.   

3. In so far as this Charter contains rights which correspond to rights  

guaranteed by the Convention of the Protection of Human Rights and  

Fundamental Freedoms, the meaning and scope of those rights shall  

be the same as those laid down by the said Convention. This provision  

shall not prevent Union law providing more extensive protection.  

Article 52(3) provides for the ECHR as a minimum standard of human rights in the  

EU. Article 52(3) thus leads the EU to be indirectly bound by the ECHR as it must  

always be obeyed when restricting fundamental rights in the EU. Moreover, in the pre-

Charter era, the protection of privacy was held to form part of the right to privacy in  

line with how the ECtHR in Strasbourg interprets Art. 8 of ECHR till date288.   

                                                           288 In the case of J McB v LE, Case C-400/10 PPU, [2010] ECR I-nyr, the CJEU ruled that where Charter rights  paralleled ECHR rights, the Court of Justice should follow any consistent jurisprudence of the European Court of  Human Rights, elucidating that: “It is clear that the said Article 7 [of the EU Charter] contains rights corresponding  to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same  meaning and the same scope as Article 8(1) of the ECHR...” Reference can be passed to a case before ECtHR,

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Thus, in order to understand the protection extended to the right to privacy in EU, the  

jurisprudence of Article 8 of the Convention and Article 7 of the Charter need to be  

analyzed. The term ‘private life’ is an essential ingredient of both these provisions and  

has been interpreted to encompass a wide range of interests.   

In the case of Niemietz v Germany289 (1992), the ECtHR observed that:   

“The Court does not consider it possible or necessary to attempt an  

exhaustive definition of the notion of "private life". However, it would be  

too restrictive to limit the notion to an "inner circle" in which the  

individual may live his own personal life as he chooses and to exclude  

therefrom entirely the outside world not encompassed within that circle.  

Respect for private life must also comprise to a certain degree the right  

to establish and develop relationships with other human beings.”  

Similarly, in Costello-Roberts v United Kingdom290 (1993), the ECtHR stated that  

“the notion of "private life" is a broad one” and “is not susceptible to exhaustive  

definition”.  

This broad approach is also present in the recent cases of European jurisprudence.  

In S and Marper v United Kingdom291 (2008), the ECtHR held, with respect to right  

to respect for private life, that :  

“...the concept of “private life”... covers the physical and psychological  

integrity of a person... It can therefore embrace multiple aspects of the  

person's physical and social identity... Elements such as, for example,  

gender identification, name and sexual orientation and sexual life fall  

within the personal sphere protected by Article 8... Beyond a person's  

                                                           Varec SA v. État belge, Case C-450/06, [2008] ECR I-581, where it was observed that that: “...the right to respect  for private life, enshrined in Article 8 of the ECHR, which flows from the common constitutional traditions of the  Member States.... is restated in Article 7 of the Charter of fundamental rights of the European Union”.    289 Application no. 13710/88, judgment dated 16 September 1992.  290 Application no. 13134/87, judgment dated 25 March 1993.  291  [2008] ECHR 1581

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name, his or her private and family life may include other means of  

personal identification and of linking to a family... Information about the  

person's health is an important element of private life... The Court  

furthermore considers that an individual's ethnic identity must be  

regarded as another such element... The concept of private life  

moreover includes elements relating to a person's right to their  

image…”  

In Uzun v Germany292 (2010), the European Court of Human Rights while examining  

an application claiming violation of Article 8 observed that:   

“Article 8 protects, inter alia, a right to identity and personal  

development, and the right to establish and develop relationships with  

other human beings and the outside world. There is, therefore, a zone  

of interaction of a person with others, even in a public context, which  

may fall within the scope of “private life”...  

There are a number of elements relevant to a consideration of whether  

a person's private life is concerned by measures effected outside a  

person's home or private premises. Since there are occasions when  

people knowingly or intentionally involve themselves in activities which  

are or may be recorded or reported in a public manner, a person's  

reasonable expectations as to privacy may be a significant, although  

not necessarily conclusive, factor…”  

 Thus, the determination of a complaint by an individual under Article 8 of the Convention  

necessarily involves a two-stage test293, which can be summarized as below:  

“Stage 1: Article 8 para. 1  

1.1 Does the complaint fall within the scope of one of the rights  

protected by Article 8 para 1?  

1.2 If so, is there a positive obligation on the State to respect an  

individual’s right and has it been fulfilled?  

Stage 2: Article 8 para. 2  

2.1 Has there been an interference with the Article 8 right?  

2.2 If so,   

                                                           292 Application No. 35623/05  293 Ursula Kilkelly, “The right to respect for private and family life: A guide to the implementation of Article 8 of the  European Convention on Human Rights”, Council of Europe (2001), at page 9

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2.2.1 is it in accordance with law?  

2.2.2 does it pursue a legitimate aim?  

2.2.3 is it necessary in a democratic society?  

This test is followed by the Court each time it applies Article 8 in a  

given case.”   

In other words, a fair balance is struck between the general interest of the community  

and the interests of the individual.  

The Grand Chamber of 18 judges at the ECtHR, in S and Marper v United Kingdom  

(supra), examined the claim of the applicants that their Right to Respect for Private  

Life under Article 8 was being violated as their fingerprints, cell samples and DNA  

profiles were retained in a database after successful termination of criminal  

proceedings against them. The Court held that there had been a violation of Article 8  

of the Convention. Finding that the retention at issue had constituted a  

disproportionate interference with the applicants’ right to respect for private life, the  

Court held that “the blanket and indiscriminate nature of the powers of retention of the  

fingerprints, cellular samples and DNA profiles of persons...fails to strike a fair balance  

between the competing public and private interests and that the respondent State has  

overstepped any acceptable margin of appreciation”. It was further held that:  

“The mere storing of data relating to the private life of an individual  

amounts to an interference within the meaning of Article 8. However,  

in determining whether the personal information retained by the  

authorities involves any of the private-life aspects mentioned above,  

the Court will have due regard to the specific context in which the  

information at issue has been recorded and retained, the nature of the  

records, the way in which these records are used and processed and  

the results that may be obtained.”  

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Applying the above principles, it was held that:  

“The Court notes at the outset that all three categories of the personal  

information retained by the authorities in the present cases, namely  

fingerprints, DNA profiles and cellular samples, constitute personal  

data within the meaning of the Data Protection Convention as they  

relate to identified or identifiable individuals. The Government accepted  

that all three categories are “personal data” within the meaning of the  

Data Protection Act 1998 in the hands of those who are able to identify  

the individual.”  

Regarding the retention of cellular samples and DNA profiles, it was held that:  

“Given the nature and the amount of personal information contained in  

cellular samples, their retention per se must be regarded as interfering  

with the right to respect for the private lives of the individuals  

concerned. That only a limited part of this information is actually  

extracted or used by the authorities through DNA profiling and that no  

immediate detriment is caused in a particular case does not change  

this conclusion… [T]he DNA profiles' capacity to provide a means of  

identifying genetic relationships between individuals… is in itself  

sufficient to conclude that their retention interferes with the right to the  

private life of the individuals concerned... The possibility the DNA  

profiles create for inferences to be drawn as to ethnic origin makes their  

retention all the more sensitive and susceptible of affecting the right to  

private life.”   

Regarding retention of fingerprints, it was held that:  

“...fingerprints objectively contain unique information about the  

individual concerned allowing his or her identification with precision in  

a wide range of circumstances. They are thus capable of affecting his  

or her private life and retention of this information without the consent  

of the individual concerned cannot be regarded as neutral or  

insignificant…”  

In Uzun v Germany (supra), the ECtHR examined an application claiming violation of  

Article 8 of European Convention of Human Rights where the applicant’s data was

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obtained via the Global Positioning System (GPS) by the investigation agencies and  

was used against him in a criminal proceeding. In this case, the applicant was  

suspected of involvement in bomb attacks by the left-wing extremist movement. The  

Court unanimously concluded that there had been no violation of Article 8 and held  

as follows:  

“GPS surveillance of Mr Uzun had been ordered to investigate several  

counts of attempted murder for which a terrorist movement had claimed  

responsibility and to prevent further bomb attacks. It therefore served  

the interests of national security and public safety, the prevention of  

crime and the protection of the rights of the victims. It had only been  

ordered after less intrusive methods of investigation had proved  

insufficient, for a relatively short period of time – three months – and it  

had affected Mr Uzun only when he was travelling with his accomplice’s  

car. Therefore, he could not be said to have been subjected to total and  

comprehensive surveillance. Given that the investigation concerned  

very serious crimes, the Court found that the GPS surveillance of Mr  

Uzun had been proportionate.”  

 The decision of the CJEU in the case Asociación Nacional de Establecimientos  

Financieros de Crédito (ASNEF) v Spain294 relied upon the Article 7 right to respect  

for private life and Article 8(1) of the Charter to find that the implementation in Spain  

of the Data Protection Directive was defective in that it applied only to information kept  

in a specified public data bank rather than more generally to public and private  

databases, on the basis that “the processing of data appearing in non-public sources  

necessarily implies that information relating to the data subject’s private life will  

thereafter be known by the data controller and, as the case may be, by the third party  

or parties to whom the data is disclosed. This more serious infringement of the data  

                                                           294 C-468/10, 24 November, [2011] ECR I-nyr

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subject’s rights enshrined in Articles 7 and 8 of the Charter must be properly taken  

into account”.  

In Digital Rights Ireland Ltd v Minister295 (2014), the CJEU examined the validity of  

a Data Protection Directive, which required telephone and internet service providers  

to retain details of internet and call data for 6 to 24 months, as well as related data  

necessary to identify the subscriber or user, so as to ensure that the data is available  

for the purpose of prevention, investigation, detection and prosecution of serious  

crimes. The Court ruled that the Directive is incompatible with Article 52(1) of the  

Charter, because the limitations which the said Directive placed were “not  

accompanied by the necessary principles for governing the guarantees needed to  

regulate access to the data and their use”. It was held that:  

“To establish the existence of an interference with the fundamental  

right to privacy, it does not matter whether the information on the private  

lives concerned is sensitive or whether the persons concerned have  

been inconvenienced in any way.”  

While stating that data relating to the use of electronic communications is particularly  

important and therefore a valuable tool in the prevention of offences and the fight  

against crime, in particular organised crime, the Court looked into the proportionality  

of the interference with the right to privacy and held that:  

“As regards the necessity for the retention of data required by Directive  

2006/24, it must be held that the fight against serious crime, in  

particular against organised crime and terrorism, is indeed of the  

utmost importance in order to ensure public security and its  

                                                           295 C-293/12

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effectiveness may depend to a great extent on the use of modern  

investigation techniques. However, such an objective of general  

interest, however fundamental it may be, does not, in itself, justify a  

retention measure such as that established by Directive 2006/24 being  

considered to be necessary for the purpose of that fight...”  

Highlighting that the said Directive does not provide for sufficient safeguards, it was  

held that by adopting the Directive, the EU “exceeded the limits imposed by  

compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of  

the Charter.”  

In RE v The United Kingdom296 (2015), the applicant was arrested and detained on  

three occasions in relation to the murder of a police officer. He claimed violation of  

Article 8 under the regime of covert surveillance of consultations between detainees  

and their lawyers, medical advisors and appropriate adults297 sanctioned by the  

existing law.  The ECtHR held that:   

“The Court…considers that the surveillance of a legal consultation  

constitutes an extremely high degree of intrusion into a person’s right  

to respect for his or her private life and correspondence...  

Consequently, in such cases it will expect the same safeguards to be  

in place to protect individuals from arbitrary interference with their  

Article 8 rights...  

Surveillance of “appropriate adult”-detainee consultations were not  

subject to legal privilege and therefore a detainee would not have the  

same expectation of privacy.…The relevant domestic provisions,  

insofar as they related to the possible surveillance of consultations  

between detainees and “appropriate adults”, were accompanied by  

“adequate safeguards against abuse”, notably as concerned the  

authorisation, review and record keeping. Hence, there is no violation  

of Article 8.”  

                                                           296 Application No. 62498/11  297 As per the facts of the case, an “appropriate adults” could be a relative or guardian, or a person experienced  in dealing with mentally disordered or mentally vulnerable people.

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In Roman Zakharov v Russia298 (2015), ECtHR examined an application claiming  

violation of Article 8 of the Convention alleging that the mobile operators had permitted  

unrestricted interception of all telephone communications by the security services  

without prior judicial authorisation, under the prevailing national law. The Court  

observed that:  

“Mr Zakharov was entitled to claim to be a victim of a violation of the  

European Convention, even though he was unable to allege that he  

had been the subject of a concrete measure of surveillance. Given the  

secret nature of the surveillance measures provided for by the  

legislation, their broad scope (affecting all users of mobile telephone  

communications) and the lack of effective means to challenge them at  

national level… Russian law did not meet the “quality of law”  

requirement and was incapable of keeping the interception of  

communications to what was “necessary in a democratic society”.  

There had accordingly been a violation of Article 8 of the Convention.”  

Both the ECtHR and the CJEU, while dealing with the application and interpretation  

of Article 8 of ECHR and Article 7 of the Charter, have kept a balanced approached  

between individual interests and societal interests. The two-step test in examining an  

individual claim related to a Convention right has strictly been followed by ECtHR.  

(vi) Decisions of the Inter-American Court of Human Rights  

Article 11 of the American Convention on Human Rights deals with the Right to  

Privacy. The provision is extracted below:   

“1. Everyone has the right to have his honor respected and his dignity  

recognized.  

                                                           298 Application No. 47143/06

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2. No one may be the object of arbitrary or abusive interference with his  

private life, his family, his home, or his correspondence, or of unlawful  

attacks on his honor or reputation.  

3. Everyone has the right to the protection of the law against such  

interference or attacks.”  

The decision in Artavia Murillo ET AL. (“In Vitro Fertilization”) v Costa Rica299  

(2012), addressed the question of whether the State’s prohibition on the practice of in  

vitro fertilisation constituted an arbitrary interference with the right to private life. The  

Court held that:   

“The scope of the protection of the right to private life has been  

interpreted in broad terms by the international human rights  

courts, when indicating that this goes beyond the right to privacy.  

The protection of private life encompasses a series of factors  

associated with the dignity of the individual, including, for  

example, the ability to develop his or her own personality and  

aspirations, to determine his or her own identity and to define  

his or her own personal relationships. The concept of private  

life encompasses aspects of physical and social identity,  

including the right to personal autonomy, personal  

development and the right to establish and develop  

relationships with other human beings and with the outside  

world. The effective exercise of the right to private life is  

decisive for the possibility of exercising personal autonomy on  

the future course of relevant events for a person’s quality of  

life. Private life includes the way in which individual views  

himself and how he decides to project this view towards  

others, and is an essential condition for the free development  

of the personality… Furthermore, the Court has indicated that  

motherhood is an essential part of the free development of a  

woman’s personality. Based on the foregoing, the Court considers  

that the decision of whether or not to become a parent is part of the  

right to private life and includes, in this case, the decision of whether  

or not to become a mother or father in the genetic or biological  

sense.” (emphasis supplied)  

                                                           299 Inter-Am. Ct. H.R. (Ser. C) No. 257

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In Escher et al v Brazil300 (2009), telephonic interception and monitoring of telephonic  

lines was carried out by the military police of the State between April and June 1999.  

The Court found that the State violated the American Convention on Human Rights  

and held that:  

 “Article 11 applies to telephone conversations irrespective of their  

content and can even include both the technical operations  

designed to record this content by taping it and listening to it, or any  

other element of the communication process; for example, the  

destination or origin of the calls that are made, the identity of the  

speakers, the frequency, time and duration of the calls, aspects that  

can be verified without the need to record the content of the call by  

taping the conversation…  

Article 11 of the Convention recognizes that every person has the  

right to respect for his honor, prohibits an illegal attack against honor  

and reputation, and imposes on the States the obligation to provide  

legal protection against such attacks. In general, the right to honor  

relates to self-esteem and self-worth, while reputation refers to the  

opinion that others have of a person…  

[O]wing to the inherent danger of abuse in any monitoring system,  

this measure must be based on especially precise legislation with  

clear, detailed rules. The American Convention protects the  

confidentiality and inviolability of communications from any kind of  

arbitrary or abusive interference from the State or individuals;  

consequently, the surveillance, intervention, recording and  

dissemination of such communications is prohibited, except in the  

cases established by law that are adapted to the objects and  

purposes of the American Convention.”  

Like other international jurisdictions, the Inter-American Court of Human Rights dealt  

with the concept of privacy and private life in broad terms which enhance the value  

of liberty and freedom.   

                                                           300 Inter-Am. Ct. H.R. (Ser. C) No. 200

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The development of the law on privacy in these jurisdictions has drawn sustenance from  

the importance and sanctity attributed to individual freedom and liberty. Constitutions  

which, like the Indian Constitution, contain entrenched rights place the dignity of the  

individual on a high pedestal. Despite cultural differences and disparate histories, a  

study of comparative law provides reassurance that the path which we have charted  

accords with a uniform respect for human values in the constitutional culture of the  

jurisdictions which we have analysed. These values are universal and of enduring  

character.     

L Criticisms of the privacy doctrine  

135 The Attorney General for India, leading the arguments before this Court on  

behalf of Union of India, has been critical of the recognition being given to a general  

right of privacy. The submission has several facets, among them being:   

(i)  there is no general or fundamental right to privacy under the Constitution;   

(ii)  no blanket right to privacy can be read as part of the fundamental rights and  

where some of the constituent facets of privacy are already covered by the  

enumerated guarantees in Part III, those facets will be protected in any case;   

(iii)  where specific species of privacy are governed by the protection of liberty in  

Part III of the Constitution, they are subject to reasonable restrictions in the  

public interest as recognized in several decisions of this Court ;  

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(iv)  privacy is a concept which does not have any specific meaning or definition  

and the expression is inchoate; and   

(v)  the draftsmen of the Constitution specifically did not include such a right as  

part of the chapter on fundamental rights and even the ambit of the expression  

liberty which was originally sought to be used in the draft Constitution was  

pruned to personal liberty. These submissions have been buttressed by Mr  

Aryama Sundaram, learned senior counsel.   

136 Criticism and critique lie at the core of democratic governance. Tolerance of  

dissent is equally a cherished value. In deciding a case of such significant dimensions,  

the Court must factor in the criticisms voiced both domestically and internationally.   

These, as we notice, are based on academic, philosophical and practical  

considerations.   

137 The Stanford Encyclopaedia of Philosophy adverts to “several sceptical and  

critical accounts of privacy”. The criticism is set out thus:   

“There are several sceptical and critical accounts of privacy.  

According to one well known argument there is no right to privacy  

and there is nothing special about privacy, because any interest  

protected as private can be equally well explained and protected by  

other interests or rights, most notably rights to property and bodily  

security (Thomson, 1975). Other critiques argue that privacy  

interests are not distinctive because the personal interests they  

protect are economically inefficient (Posner, 1981) or that they are  

not grounded in any adequate legal doctrine (Bork, 1990). Finally,  

there is the feminist critique of privacy, that granting special status

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to privacy is detrimental to women and others because it is used as  

a shield to dominate and control them, silence them, and cover up  

abuse (MacKinnon, 1989).”301  

138 In a 2013 article published in the Harvard Law Review, a professor of law at  

Georgetown Law Center, Georgetown University, described privacy as having an  

“image problem”302. Privacy, as she notes, has been cast as “old-fashioned at best  

and downright harmful at worst - anti-progressive, overly costly, and inimical to the  

welfare of the body politic”303. The consequences in her view are predictable:   

“…when privacy and its purportedly outdated values must be  

balanced against the cutting-edge imperatives of national security,  

efficiency, and entrepreneurship, privacy comes up the loser. The  

list of privacy counterweights is long and growing. The recent  

additions of social media, mobile platforms, cloud computing, data  

mining, and predictive analytics now threaten to tip the scales  

entirely, placing privacy in permanent opposition to the progress of  

knowledge.”304  

The article proceeds to explain that the perception of privacy as antiquated and  

socially retrograde is wrong. Nonetheless, this criticism has relevance to India. The  

nation aspires to move to a knowledge based economy.  Information is the basis of  

knowledge. The scales must, according to this critique, tip in favour of the paramount  

national need for knowledge, innovation and development.  These concerns cannot  

be discarded and must be factored in. They are based on the need to provide  

economic growth and social welfare to large swathes of an impoverished society.   

                                                           301 “Privacy” , Stanford Encyclopaedia of Philosophy (2002) , available at   https://plato.stanford.edu/entries/privacy/  302 Julie E Cohen, “What Privacy Is For”, Harvard Law Review (2013), Vol. 126, at page 1904  303 Ibid  304 Ibid, at pages 1904-1905.

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139  Another criticism, which is by Robert Bork, questions the choice of  

fundamental values of the Constitution by judges of the US Supreme Court and the  

theory (propounded by Justice Douglas in Griswold) of the existence of ‘penumbras’  

or zones of privacy created by the Bill of Rights as a leap of judicial interpretation.305  

140 The Stanford Encyclopaedia of Philosophy seeks to offer an understanding  

of the literature on privacy in terms of two concepts: reductionism and coherentism.306  

Reductionists are generally critical of privacy while the Coherentists defend  

fundamental values of privacy interests. The criticisms of privacy have been broadly  

summarised as consisting of the following :  

a Thomson’s Reductionism307    

Judith Jarvis Thomson, in an article published in 1975, noted that while there is little  

agreement on the content of privacy, ultimately privacy is a cluster of rights which  

overlap with property rights or the right to bodily security.  In her view, the right to  

privacy is derivative in the sense that a privacy violation is better understood as  

violation of a more basic right.  

                                                           305 For this criticism, see :  Robert H Bork, “Neutral Principles and some First Amendment Problems”,  Indiana  

Law Journal (Fall 1971), Vol. 47(1), at pages 8-9                 306 Supra note 301  307 Judith Jarvis Thomson, “The Right to Privacy” , Philosophy and Public Affairs (1975), Vol. 4, at pages 295- 314, as cited in Supra note 301

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b Posner’s Economic critique308   

Richard Posner, in ‘the Economics of Justice’ published in 1981, argued that  

privacy is protected in ways that are economically inefficient.  In his view, privacy  

should be protected only when access to information would reduce its value such as  

when a student is allowed access to a letter of recommendation for admission,  

rendering such a letter less reliable. According to Posner, privacy when manifested  

as control over information about oneself, is utilised to mislead or manipulate others.  

c  Bork’s critique    

Robert Bork, in ‘The Tempting of America: The Political Seduction of the Law’309,  

has been severe in his criticism of the protection of privacy by the US Supreme Court.  

In his view, Justice Douglas in Griswold did not derive privacy from some pre-existing  

right but sought to create a new right which has no foundation in the Bill of Rights,  

thereby overstepping the bounds of a judge by making new law and not by interpreting  

it.    

Many theorists urge that the constitutional right to privacy is more correctly regarded  

as a right to liberty.   

The powerful counter argument to these criticisms is that while individuals possess  

multiple liberties under the Constitution, read in isolation, many of them are not related  

to the kinds of concerns that emerge in privacy issues.  In this view, liberty is a concept  

                                                           308 Richard Posner, The Economics of Justice, Harvard University Press (1981), as cited in Supra note 301  309 Robert Bork, The Tempting of America : The Political Seduction of the Law, Simon and Schuster (1990), as  

cited in Supra note 301

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which is broader than privacy and issues or claims relating to privacy are a sub-set of  

claims to liberty.310 Hence it has been argued that privacy protects liberty and that  

“privacy protection gains for us the freedom to define ourselves and our relations to  

others”311. This rationale understands the relationship between liberty and privacy by  

stipulating that while liberty is a broader notion, privacy is essential for protecting  

liberty.  Recognizing a constitutional right to privacy is a reaffirmation of the individual  

interest in making certain decisions crucial to one’s personality and being.  

d Feminist critique    

Many writers on feminism express concern over the use of privacy as a veneer for  

patriarchal domination and abuse of women. Patriarchal notions still prevail in several  

societies including our own and are used as a shield to violate core constitutional  

rights of women based on gender and autonomy. As a result, gender violence is often  

treated as a matter of “family honour” resulting in the victim of violence suffering twice  

over – the physical and mental trauma of her dignity being violated and the perception  

that it has cause an affront to “honour”. Privacy must not be utilised as a cover to  

conceal and assert patriarchal mindsets.   

Catherine MacKinnon in a 1989 publication titled ‘Towards a Feminist Theory of  

the State’312 adverts to the dangers of privacy when it is used to cover up physical  

harm done to women by perpetrating their subjection.  Yet, it must also be noticed  

                                                           310 Supra note 301  311 Ibid  312 Catherine MacKinnon, Toward a Feminist Theory of the State, Harvard University Press (1989), as cited in  Supra note 301

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that women have an inviolable interest in privacy. Privacy is the ultimate guarantee  

against violations caused by programmes not unknown to history, such as state  

imposed sterilization programmes or mandatory state imposed drug testing for  

women. The challenge in this area is to enable the state to take the violation of the  

dignity of women in the domestic sphere seriously while at the same time protecting  

the privacy entitlements of women grounded in the identity of gender and liberty.   

141 The submission that privacy has no accepted or defined connotation can be  

analysed with reference to the evolution of the concept in the literature on the subject.   

Some of the leading approaches which should be considered for an insight into the  

ambit and content of privacy:    

(i)  Alan Westin313 defined four basic states of privacy which reflect on the nature  

and extent of the involvement of the individual in the public sphere. At the core is  

solitude – the most complete state of privacy involving the individual in an “inner  

dialogue with the mind and conscience”.314 The second state is the state of intimacy  

which refers not merely to intimate relations between spouses or partners but also  

between family, friends and colleagues. The third state is of anonymity where an  

individual seeks freedom from identification despite being in a public space.  The  

fourth state is described as a state of reservation which is expressed as “the need to  

                                                           313 Westin’s categorization of privacy is based on the specific values which it sub-serves.  Westin has drawn  

support from the distinction made in 1960 by William L. Prosser for the purposes of civil privacy violations or  torts, Westin adopted a value based approach, unlike the harms based approach of Prosser. For Prosser’s  work, see William L. Prosser, “Privacy”, California Law Review (1960), Vol. 48(3), pages 383-423.  

314 Bert-Jaap Koops et al., “A Typology of Privacy”, University of Pennsylvania Journal of International Law (2017),  Vol. 38, Issue 2, at page 496

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hold some aspects of ourselves back from others, either as too personal and sacred  

or as too shameful and profane to express”315.    

(ii) Roger Clarke has developed a classification of privacy on Maslow’s pyramid  

of values316. The values described in Maslow’s pyramid are: self-actualization, self-

esteem, love or belonging, safety and physiological or biological need. Clarke’s  

categories include (a) privacy of the person also known as bodily privacy. Bodily  

privacy is violated by compulsory extraction of samples of body fluids and body tissue  

and compulsory sterilization; (b) privacy of personal behaviour which is part of a  

private space including the home; (c) Privacy of personal communications which is  

expressed as the freedom of communication without interception or routine monitoring  

of one’s communication by others; (d) Privacy of personal data which is linked to the  

concept of informational privacy.   

(iii) Anita Allen has, in a 2011 publication, developed the concept of “unpopular  

privacy”317. According to her, governments must design “unpopular” privacy laws and  

duties to protect the common good, even if privacy is being forced on individuals who  

may not want it. Individuals under this approach are not permitted to waive their  

privacy rights. Among the component elements which she notices are : (a) physical  

or spatial privacy – illustrated by the privacy in the home; (b) informational privacy  

including information data or facts about persons or their communications; (c)  

                                                           315 Ibid, at page 497  316 Ibid, at 498  317  Ibid, at 500

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decisional privacy which protects the right of citizens to make intimate choices about  

their rights from intrusion by the State; (d) proprietary privacy which relates to the  

protection of one’s reputation; (e) associational privacy which protects the right of  

groups with certain defined characteristics to determine whom they may include or  

exclude.318   

Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy;  

and (iii) informational control.319 Spatial control denotes the creation of private spaces.  

Decisional autonomy comprehends intimate personal choices such as those  

governing reproduction as well as choices expressed in public such as faith or modes  

of dress.  Informational control empowers the individual to use privacy as a shield to  

retain personal control over information pertaining to the person.  With regard to  

informational privacy, it has been stated that :  

“…perhaps the most convincing conception is proposed by Helen  

Nissenbaum who argues that privacy is the expectation that  

information about a person will be treated appropriately.  This  

theory of “contextual integrity” believes people do not want to  

control their information or become inaccessible as much as they  

want their information to be treated in accordance with their  

expectation (Nissenbaum 2004, 2010, 2011).”320   

Integrated together, the fundamental notions of privacy have been depicted in a  

seminal article published in 2017 titled “A Typology of privacy”321 in the University  

                                                           318 Ibid, at pages 500-501  319  Bhairav Acharya, “The Four Parts of Privacy in India”, Economic & Political Weekly (2015), Vol. 50 Issue 22,  

at page 32  320 Ibid, at page 34  

321 Bert-Jaap Koops  et al., “A Typology of Privacy”, University of Pennsylvania Journal of International Law (2017),  Vol. 38  Issue 2, at page 566

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of Pennsylvania Journal of International Law. The article contains an excellent visual  

depiction of privacy, which is presented in the following format :    

142 The above diagrammatical representation presents two primary axes: a  

horizontal axis consisting of four zones of privacy and a vertical axis which  

emphasises two aspects of freedom: the freedom to be let alone and the freedom for  

self-development. The nine primary types of privacy are, according to the above  

depiction: (i) bodily privacy which reflects the privacy of the physical body. Implicit in  

this is the negative freedom of being able to prevent others from violating one’s body  

or from restraining the freedom of bodily movement; (ii) spatial privacy which is  

reflected in the privacy of a private space through which access of others can be  

restricted to the space; intimate relations and family life are an apt illustration of spatial  

privacy; (iii) communicational privacy which is reflected in enabling an  individual  to

(emphasis  on)  Freedom  to be  let  alone”    

(emphasis on)  

Freedom to  “self- development”    

personal  zone  

intimate  zone  

semi-private  zone  “secrecy”  

public zone  “inconspicuousness”  

behavioural  

privacy  

associational  

privacy  

decisional  

privacy  

   intellectual  privacy  

bodily privacy  

spatial privacy  

communicational  

Privacy  

 proprietary  Privacy  

i n f o rm a t i o n a l  p r i va c y  

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restrict access to communications or control the use of information which is  

communicated to third parties; (iv) proprietary privacy which is reflected by the interest  

of a person in utilising  property as a means to shield facts, things or information from  

others; (v) intellectual privacy which is reflected as an individual interest in the privacy  

of thought and mind and the development of opinions and beliefs; (vi) decisional  

privacy reflected by an ability to make intimate decisions primarily consisting one’s  

sexual or procreative nature and decisions in respect of intimate relations; (vii)  

associational privacy which is reflected in the ability of the individual to choose who  

she wishes to interact with; (viii) behavioural privacy which recognises the privacy  

interests of a person even while conducting publicly visible activities. Behavioural  

privacy postulates that even when access is granted to others, the individual is entitled  

to control the extent of access and preserve to herself a measure of freedom from  

unwanted intrusion; and (ix) informational privacy which reflects an interest in  

preventing information about the self from being disseminated and controlling the  

extent of access to information.   

M Constituent Assembly and privacy: limits of originalist interpretation  

143 The founding fathers of the Constitution, it has been urged, rejected the notion  

of privacy being a fundamental right. Hence it has been submitted that it would be  

outside the realm of constitutional adjudication for the Court to declare a fundamental  

right to privacy. The argument merits close consideration.    

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144 On 17 March 1947, K M Munshi submitted Draft articles on the fundamental  

rights and duties of citizens to the Sub-committee on fundamental rights. Among the  

rights of freedom proposed in clause 5 were the following322 :   

“…(f) the right to the inviolability of his home,  

(g) the right to the secrecy of his correspondence,  

(h) the right to maintain his person secure by the law of the Union  

from exploitation in any manner contrary to law or public authority…”  

145 On 24 March 1947, Dr Ambedkar submitted a Memorandum and Draft articles  

on the rights of states and minorities. Among the draft articles on fundamental rights  

of citizens was the following323 :  

“…10. The right of the people to be secure in their persons, houses,  

papers and effects against unreasonable searches and seizures, shall  

not be violated and no warrants shall issue but upon probable cause,  

supported by oath or affirmation, and particularly describing the place  

to be searched, and the persons or things to be seized…”  

146 The draft report of the Sub-committee submitted on 3 April 1947 contained a  

division between the fundamental rights into justiciable and non-justiciable rights.  

Clause 9(d) and Clause 10 provided as follows324 :  

“9(d) The right of every citizen to the secrecy of his  

correspondence. Provision may be made by law to regulate  

the interception or detention of articles and messages in  

course of transmission by post, telegraph or otherwise on  

the occurrence of any public emergency or in the interests  

of public safety or tranquillity…  

                                                           322 B. Shiva Rao, The Framing of India’s Constitution, Indian Institute of Public Administration (1967), Vol. 2, at  page 75  323 Ibid, at page 87  324 Ibid, at page 139

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10. The right of the people to be secure in their persons,  

houses, papers and effects against unreasonable searches  

and seizures, shall not be violated and no warrants shall  

issue but upon probable cause, supported by oath or  

affirmation, and particularly describing the place to be  

searched, and the persons or things to be seized”  

147 Dr B N Rau in his notes on the draft report had reservations about clause 10  

which were expressed thus325:  

“Clause 10. If this means that there is to be no search without a  

court’s warrant, it may seriously affect the powers of investigation  

of the police. Under the existing law, eg., Criminal Procedure Code,  

section 165 (relevant extracts given below), the police have certain  

important powers. Often in the course of investigation, a police  

officer gets information that stolen property has been secreted in a  

certain place. If he searches it at once, as he can at present, there  

is a chance of his recovering it; but he has to apply for a court’s  

warrant, giving full details, the delay involved, under Indian  

conditions of distance and lack of transport in the interior may be  

fatal.”  

A note was submitted by Sir Alladi Krishnaswamy Iyer on 10 April 1947 objecting to  

the ‘secrecy of correspondence’ mentioned in clause 9(d) and the protection against  

unreasonable searches in clause 10326 :  

“Clause (d). In regard to secrecy of correspondence I raised a point  

during the discussions that it need not find a place in chapter on  

fundamental rights and it had better be left to the protection afforded  

by the ordinary law of the land contained in the various enactments.  

There is no such right in the American Constitution. Such a  

provision finds a place only in the post-First World War  

constitutions. The effect of the clauses upon the sections of the  

Indian Evidence Act bearing upon privilege will have to be  

considered. Restrictions -vide chapter 9, s 120-127. The result of  

                                                           325 Ibid, at page 152  326 Ibid, at pages 158-159

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this clause will be that every private correspondence will assume  

the rank of a State paper, or, in the language of s. 123 and 124, a  

record relating to the affairs of State.   

A clause like this might checkmate the prosecution in establishing  

any case of conspiracy or abetment, the plaintiff being helpless to  

prove the same by placing before the court the correspondence that  

passed between the parties which in all these cases would furnish  

the most material evidence. The opening words of the clause  

“public order and morality” would not be of any avail in such cases.  

On a very careful consideration of the whole subject I feel that  

inclusion of such a clause in the chapter on fundamental rights will  

lead to endless complications and difficulties in the administration  

of justice. It will be for the committee to consider whether a  

reconsideration of the clause is called for in the above  

circumstances.   

Clause 10. Unreasonable searches, In regard to this subject I  

pointed out the difference between the conditions obtaining in  

America at the time when the American Constitution was drafted  

and the conditions in India obtaining at present after the provisions  

of the Criminal Procedure Code in this behalf have been in force for  

nearly a century. The effect of the clause, as it is, will be to abrogate  

some of the provisions of the Criminal Procedure Code and to leave  

it to the Supreme Court in particular cases to decide whether the  

search is reasonable or unreasonable. While I am averse to  

reagitating the matter I think it may not be too late for the committee  

to consider this particular clause.”  

During the course of the comments and suggestions on the draft Constitution, Jaya  

Prakash Narayan suggested the inclusion of the secrecy of postal, telegraphic and  

telephonic communications. Such an inclusion was, however, objected to on the  

following grounds327 :  

“…It is also hardly necessary to include secrecy of postal,  

telegraphic and telephonic communications as a fundamental right  

in the Constitution itself as that might lead to practical difficulties in  

                                                           327 B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institute of Public Administration (1968), at  pages 219-220

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the administration of the posts and telegraph department. The  

relevant laws enacted by the Legislature on the subject (the Indian  

Post Office Act, 1898 and the Indian Telegraph Act, 1885) permit  

interception of communications sent through post, telegraph or  

telephone only in specified circumstances, such as, on the  

occurrence of an emergency and in the interests of public safety.”  

 Eventually, clause 9(d) and clause 10 were dropped from the chapter dealing with  

fundamental rights.  

148 This discussion would indicate that there was a debate during the course of the  

drafting of the Constitution on the proposal to guarantee to every citizen the right to  

secrecy of correspondence in clause 9(d) and the protection to be secure against  

unreasonable searches and seizures in their persons houses, papers and assets. The  

objection to clause 9(d) was set out in the note of dissent of Sir Alladi Krishnaswamy  

Iyer and it was his view that the guarantee of secrecy of correspondence may lead to  

every private correspondence becoming a state paper.  There was also a feeling that  

this would affect the prosecution especially in cases of conspiracy or abetment.   

Similarly, his objection to clause 10 was that it would abrogate some of the provisions  

of the Code of Criminal Procedure.  B N Rau likewise stated that this would seriously  

affect the powers of investigation of the police.  The clause protecting the secrecy of  

correspondence was thus dropped on the ground that it would constitute a serious  

impediment in prosecutions while the protection against unreasonable searches and  

seizures was deleted on the ground that there were provisions in the Code of Criminal  

Procedure, 1898 covering the area.  The debates of the Constituent Assembly indicate

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that the proposed inclusion (which was eventually dropped) was in two specific areas  

namely correspondence and searches and seizures. From this, it cannot be concluded  

that the Constituent Assembly had expressly resolved to reject the notion of the right  

to privacy as an integral element of the liberty and freedoms guaranteed by the  

fundamental rights.   

149 The Constitution has evolved over time, as judicial interpretation, led to the  

recognition of specific interests and entitlements. These have been subsumed within  

the freedoms and liberties guaranteed by the Constitution.  Article 21 has been  

interpreted by this Court to mean that life does not mean merely a physical existence.   

It includes all those faculties by which life is enjoyed. The ambit of ‘the procedure  

established by law’ has been interpreted to mean that the procedure must be fair, just  

and reasonable.  The coalescence of Articles 14, 19 and 21 has brought into being a  

jurisprudence which recognises the inter-relationship between rights.  That is how the  

requirements of fairness and non-discrimination animate both the substantive and  

procedural aspects of Article 21. These constitutional developments have taken place  

as the words of the Constitution have been interpreted to deal with new exigencies  

requiring an expansive reading of liberties and freedoms to preserve human rights  

under the rule of law. India’s brush with a regime of the suspension of life and personal  

liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if  

the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by  

its original understanding. The Constitution has evolved and must continuously evolve

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to meet the aspirations and challenges of the present and the future. Nor can judges  

foresee every challenge and contingency which may arise in the future. This is  

particularly of relevance in an age where technology reshapes our fundamental  

understanding of information, knowledge and human relationships that was unknown  

even in the recent past.  Hence as Judges interpreting the Constitution today, the  

Court must leave open the path for succeeding generations to meet the challenges to  

privacy that may be unknown today.  

150 The impact of the decision in Cooper 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 inter-related, 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 19 would, 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 water-tight compartments, the post Maneka jurisprudence  

infused the test of fairness and reasonableness in determining whether the ‘procedure

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established by law’ passes muster under Article 21.  At a substantive level, the  

constitutional values underlying each article in the Chapter on fundamental rights  

animate the meaning of the others. This development of the law has followed a natural  

evolution. The basis of this development after all is that every aspect of the diverse  

guarantees of fundamental rights deals with human beings. Every element together  

with others contributes in the composition of the human personality. In the very nature  

of things, no element can be read in a manner disjunctive from the composite whole.  

The close relationship between each of the fundamental rights has led to the  

recognition of constitutional entitlements and interests.  Some of them may straddle  

more than one, and on occasion several, fundamental rights.  Yet others may reflect  

the core value upon which the fundamental rights are founded.  Even at the birth of  

the Constitution, the founding fathers recognised in the Constituent Assembly that, for  

instance, the freedom of speech and expression would comprehend the freedom of  

the press. Hence the guarantee of free speech and expression has been interpreted  

to extend to the freedom of the press. Recognition of the freedom of the press does  

not create by judicial fiat, a new fundamental right but is an acknowledgment of that,  

which lies embedded and without which the guarantee of free speech and expression  

would not be complete.  Similarly, Article 21 has been interpreted to include a  

spectrum of entitlements such as a right to a clean environment, the right to public  

health, the right to know, the right to means of communication and the right to  

education, besides a panoply of rights in the context of criminal law and procedure in  

matters such as handcuffing and speedy trial. The rights which have been held to flow  

out of Article 21 include the following:   

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(i) The right to go abroad – Satwant Singh Sawhney v D Ramarathnam APO  

New Delhi 328.  

(ii) The right against solitary confinement – Sunil Batra v Delhi Administration329.  

(iii) The right of prisoners against bar fetters – Charles Sobraj v Supdt. Central    

Jail330.  

(iv) The right to legal aid – M H Hoskot v State of Maharashtra331.   

(v)    The right to speedy trial – Hussainara Khatoon v Home Secretary, State of      

Bihar332.  

(vi) The right against handcuffing – Prem Shankar Shukla v Delhi          

Administration333.  

(vii)  The right against custodial violence – Sheela Barse v State of Maharashtra334.  

(viii)   The right against public hanging – A G of India v Lachma Devi335.  

(ix) Right to doctor’s assistance at government hospitals – Paramanand Katara v       

Union of India336.   

(x) Right to shelter – Shantistar Builders v N K Totame337.   

(xi) Right to a healthy environment – Virender Gaur v State of Haryana338.  

(xii) Right to compensation for unlawful arrest – Rudal Sah v State of Bihar339.  

                                                           328 (1967) 3 SCR 525  329 (1978) 4 SCC 494   330 (1978) 4 SCC 104  331 (1978) 3 SCC 544  332 (1980) 1 SCC 81  333 (1980) 3 SCC 526  334 (1983) 2 SCC 96  335 (1989) Suppl.(1) SCC 264  336 (1989) 4 SCC 286  337 (1990) 1 SCC 520  338 (1995) 2 SCC 577  339 (1983) 4 SCC 141

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(xiii) Right to freedom from torture – Sunil Batra v Delhi Administration340.  

(xiv) Right to reputation – Umesh Kumar v State of Andhra Pradesh341.  

(xv) Right to earn a livelihood – Olga Tellis v Bombay Municipal Corporation342.  

Neither is this an exercise in constitutional amendment brought about by judicial  

decision nor does it result in the creation of a new set of fundamental rights. The  

exercise has been one of interpreting existing rights guaranteed by the Constitution  

and while understanding the core of those rights, to define the ambit of what the right  

comprehends.    

151 The draftsmen of the Constitution had a sense of history both global and  

domestic– as they attempted to translate their vision of freedom into guarantees  

against authoritarian behaviour. The Constitution adopted a democratic form of  

government based on the rule of law. The framers were conscious of the widespread  

abuse of human rights by authoritarian regimes in the two World Wars separated over  

a period of two decades. The framers were equally conscious of the injustice suffered  

under a colonial regime and more recently of the horrors of partition.  The backdrop  

of human suffering furnished a reason to preserve a regime of governance based on  

the rule of law which would be subject to democratic accountability against a violation  

of fundamental freedoms. The content of the fundamental rights evolved over the  

                                                           340(1978) 4 SCC 494  341 (2013) 10 SCC 591  342 (1985) 3 SCC 545

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course of our constitutional history and any discussion of the issues of privacy,  

together with its relationship with liberty and dignity, would be incomplete without a  

brief reference to the course of history as it unravels in precedent. By guaranteeing  

the freedoms and liberties embodied in the fundamental rights, the Constitution has  

preserved natural rights and ring-fenced them from attempts to attenuate their  

existence.  

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.

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N Is the statutory protection to privacy reason to deny a constitutional right?  

152 The Union government and some of the States which have supported it have  

urged this Court that there is a statutory regime by virtue of which the right to privacy  

is adequately protected and hence it is not necessary to read a constitutional right to  

privacy into the fundamental rights. This submission is sought to be fortified by  

contending that privacy is merely a common law right and the statutory protection is  

a reflection of that position.    

153 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

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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.     

But the important point to note is that when a right is conferred with an entrenched  

constitutional status in Part III, it provides a touchstone on which the validity of  

executive decision making can be assessed and the validity of law can be determined  

by judicial review.  Entrenched constitutional rights provide the basis of evaluating the  

validity of law.  Hence, it would be plainly unacceptable to urge that the existence of  

law negates the rationale for a constitutional right or renders the constitutional right  

unnecessary.  

O Not an elitist construct   

154 The Attorney General argued before us that the right to privacy must be  

forsaken in the interest of welfare entitlements provided by the State. In our view, the  

submission that the right to privacy is an elitist construct which stands apart from the

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needs and aspirations of the large majority constituting the rest of society, is  

unsustainable.  This submission betrays a misunderstanding of the constitutional  

position. Our Constitution places the individual at the forefront of its focus,  

guaranteeing civil and political rights in Part III and embodying an aspiration for  

achieving socio- economic rights in Part IV.  The refrain that the poor need no civil  

and political rights and are concerned only with economic well-being has been utilised  

though history to wreak the most egregious violations of human rights.  Above all, it  

must be realised that it is the right to question, the right to scrutinize and the right to  

dissent which enables an informed citizenry to scrutinize the actions of government.  

Those who are governed are entitled to question those who govern, about the  

discharge of their constitutional duties including in the provision of socio-economic  

welfare benefits. The power to scrutinize and to reason enables the citizens of a  

democratic polity to make informed decisions on basic issues which govern their  

rights. The theory that civil and political rights are subservient to socio-economic rights  

has been urged in the past and has been categorically rejected in the course of  

constitutional adjudication by this Court.   

155 Civil and political rights and socio-economic rights do not exist in a state of  

antagonism. The conditions necessary for realising or fulfilling socio-economic rights  

do not postulate the subversion of political freedom. The reason for this is simple.   

Socio-economic entitlements must yield true benefits to those for whom they are  

intended. This can be achieved by eliminating rent-seeking behaviour and by

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preventing the capture of social welfare benefits by persons who are not entitled to  

them. Capture of social welfare benefits can be obviated only when political systems  

are transparent and when there is a free flow of information. Opacity enures to the  

benefit of those who monopolize scarce economic resources. On the other hand,  

conditions where civil and political freedoms flourish ensure that governmental  

policies are subjected to critique and assessment. It is this scrutiny which sub-serves  

the purpose of ensuring that socio-economic benefits actually permeate to the under-

privileged for whom they are meant. Conditions of freedom and a vibrant assertion of  

civil and political rights promote a constant review of the justness of socio-economic  

programmes and of their effectiveness in addressing deprivation and want. Scrutiny  

of public affairs is founded upon the existence of freedom.  Hence civil and political  

rights and socio-economic rights are complementary and not mutually exclusive.   

156 Some of these themes have been addressed in the writings of the Nobel  

laureate, Amartya Sen. Sen compares the response of many non-democratic regimes  

in critical situations such as famine with the responses of democratic societies in  

similar situations.343 His analysis reveals that the political immunity enjoyed by  

government leaders in authoritarian states prevents effective measures being taken  

to address such conditions:  

“For example, Botswana had a fall in food production of 17 percent  

and Zimbabwe one of 38 percent between 1979-1981 and 1983-

1984, in the same period in which the food production decline  

                                                           343 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 178-179

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amounted to a relatively modest 11 or 12 percent in Sudan and  

Ethiopia.  But while Sudan and Ethiopia, with comparatively smaller  

declines in food output, had massive famines, Botswana and  

Zimbabwe had none, and this was largely due to timely and  

extensive famine prevention policies by these latter countries.  

Had the governments in Botswana and Zimbabwe failed to  

undertake timely action, they would have been under severe  

criticism and pressure from the opposition and would have gotten  

plenty of flak from newspapers.  In contrast, the Ethiopian and  

Sudanese governments did not have to reckon with those  

prospects, and the political incentives provided by democratic  

institutions were thoroughly absent in those countries.  Famines in  

Sudan and Ethiopia – and in many other countries in sub-Saharan  

Africa – were fed by the political immunity enjoyed by governmental  

leaders in authoritarian countries.  This would seem to apply to the  

present situation in North Korea as well.”344  

In the Indian context, Sen points out that the Bengal famine of 1943 “was made viable  

not only by the lack of democracy in colonial India but also by severe restrictions on  

reporting and criticism imposed on the Indian press, and the voluntary practice of  

‘silence’ on the famine that the British-owned media chose to follow”345. Political  

liberties and democratic rights are hence regarded as ‘constituent components’ of  

development.346 In contrast during the drought which took place in Maharashtra in  

1973, food production failed drastically and the per capita food output was half of that  

in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million  

people were employed in rapidly organized public projects while there were  

                                                           344 Ibid, at page 179  345 Amartya Sen, The Idea of Justice, Penguin Books (2009),  at page 339  346 Ibid, at page 347

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substantial famines in sub-Saharan Africa. This establishes what he terms as “the  

protective role of democracy”.  Sen has analysed the issue succinctly:  

“The causal connection between democracy and the non-

occurrence of famines is not hard to seek.  Famines kill millions of  

people in different countries in the world, but they don’t kill the  

rulers.  The kings and the presidents, the bureaucrats and the  

bosses, the military leaders and the commanders never are famine  

victims.  And if there are no elections, no opposition parties, no  

scope for uncensored public criticism, then those in authority don’t  

have to suffer the political consequences of their failure to prevent  

famines.  Democracy, on the other hand, would spread the penalty  

of famines to the ruling groups and political leaders as well.  This  

gives them the political incentive to try to prevent any threatening  

famine, and since famines are in fact easy to prevent (the economic  

argument clicks into the political one at this stage), the approaching  

famines are firmly prevented.”347  

There is, in other words, an intrinsic relationship between development and freedom:   

“…development cannot really be seen merely as the process of  

increasing inanimate objects of convenience, such as raising the  

GNP per head, or promoting industrialization or technological  

advance or social modernization.  These accomplishments are, of  

course, valuable – often crucially important – but their value must  

depend on what they do to the lives and freedoms of the people  

involved. For adult human beings, with responsibility for choice, the  

focus must ultimately be on whether they have the freedom to do  

what they have reason to value. In this sense, development consists  

of expansion of people’s freedom.”348  

                                                           347 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 180  348 Amartya Sen, “The Country of First Boys”, Oxford University Press, Pg.80-81

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In an article recently published in July 2017 in Public Law, titled “The Untapped  

Potential of the Mandela Constitution”349, Justice Edwin Cameron, a distinguished  

judge of the Constitutional Court of South Africa, has provided a telling example.   

President Mbeki of South Africa doubted the medical science underlying AIDS and  

effectively obstructed a feasible ARV programme.  This posture of AIDS denialism  

plunged South Africa into a crisis of public health as a result of which the drug  

Nevirapine which was offered to the South African government free of charge was  

refused.  Eventually it was when the South African Constitutional Court intervened in  

the Treatment Action Campaign decision350 that it was held that the government  

had failed the reasonableness test.  The article notes that as a result of the decision,  

the drug became available and “hundreds and thousands, perhaps millions, of lives  

have been saved”.  Besides, the article notes that the judgment changed the public  

discourse of AIDS and “cut-through the obfuscation of denials and in doing so, dealt  

it a fatal blow”351.  

Examples can be multiplied on how a state sanctioned curtain of misinformation or  

state mandated black-outs of information can cause a serious denial of socio-

economic rights.  The strength of Indian democracy lies in the foundation provided by  

                                                           349 Edwin Cameron and Max Taylor, “The Untapped Potential of the Mandela Constitution”, Public Law (2017),  at page 394   350 Minister of Health v Treatment Action Campaign, (2002) 5 SA 721 (CC)  351 Edwin Cameron and Max Taylor, “The Untapped Potential of the Mandela Constitution”, Public Law (2017),  at page 395

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the Constitution to liberty and freedom. Liberty and freedom are values which are  

intrinsic to our constitutional order.  But they also have an instrumental value in  

creating conditions in which socio-economic rights can be achieved.  India has no iron  

curtain. Our society prospers in the shadow of its drapes which let in sunshine and  

reflect a multitude of hues based on language, religion, culture and ideologies.   

157 We need also emphasise the lack of substance in the submission that privacy  

is a privilege for the few.  Every individual in society irrespective of social class or  

economic status is entitled to the intimacy and autonomy which privacy protects. It is  

privacy as an intrinsic and core feature of life and personal liberty which enables an  

individual to stand up against a programme of forced sterilization.  Then again, it is  

privacy which is a powerful guarantee if the State were to introduce compulsory drug  

trials of non-consenting men or women.  The sanctity of marriage, the liberty of  

procreation, the choice of a family life and the dignity of being are matters which  

concern every individual irrespective of social strata or economic well being.  The  

pursuit of happiness is founded upon autonomy and dignity.  Both are essential  

attributes of privacy which makes no distinction between the birth marks of individuals.   

 P Not just a common law right  

158 There is also no merit in the defence of the Union and the States that privacy  

is merely a common law right. The fact that a right may have been afforded protection  

at common law does not constitute a bar to the constitutional recognition of the right.  

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The Constitution recognises the right simply because it is an incident of a fundamental  

freedom or liberty which the draftsperson considered to be so significant as to require  

constitutional protection.  Once privacy is held to be an incident of the protection of  

life, personal liberty and of the liberties guaranteed by the provisions of Part III of the  

Constitution, the submission that privacy is only a right at common law misses the  

wood for the trees. The central theme is that privacy is an intrinsic part of life, personal  

liberty and of the freedoms guaranteed by Part III which entitles it to protection as a  

core of constitutional doctrine. The protection of privacy by the Constitution liberates  

it, as it were, from the uncertainties of statutory law which, as we have noted, is subject  

to the range of legislative annulments open to a majoritarian government.  Any  

abridgment must meet the requirements prescribed by Article 21, Article 19 or the  

relevant freedom. The Constitutional right is placed at a pedestal which embodies  

both a negative and a positive freedom. The negative freedom protects the individual  

from unwanted intrusion.  As a positive freedom, it obliges the State to adopt suitable  

measures for protecting individual privacy.  An apt description of this facet is contained  

in the Max Planck Encyclopaedia of Comparative Constitutional Law, in its  

section on the right to privacy352 :   

“2. The right to privacy can be both negatively and positively  

defined. The negative right to privacy entails the individuals are  

protected from unwanted intrusion by both the state and private  

actors into their private life, especially features that define their  

personal identity such as sexuality, religion and political affiliation,  

ie the inner core of a person’s private life….

                                                           352 Anna Jonsson Cornell, “Right to Privacy”, Max Planck Encyclopaedia of Comparative Constitutional Law  (2015)

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The positive right to privacy entails an obligation of states to remove  

obstacles for an autonomous shaping of individual identities.”  

Q Substantive Due Process   

159 During the course of the hearing, Mr Rakesh Dwivedi, learned Senior Counsel  

appearing on behalf of the State of Gujarat submitted that the requirement of a valid  

law with reference to Article 21 is not conditioned by the notion of substantive due  

process. Substantive due process, it was urged is a concept which has been evolved  

in relation to the US Constitution but is inapposite in relation to the Indian Constitution.  

The history surrounding the drafting of Article 21 indicates a conscious decision by  

the Constituent Assembly not to introduce the expression “due process of law” which  

is incorporated in the Fifth and Fourteenth Amendments of the US Constitution.  The  

draft Constitution which was prepared by the Drafting Committee chaired by Dr B R  

Ambedkar contained a ‘due process’ clause to the effect that ‘nor any State shall  

deprive any person of life, liberty and property without due process of law’. The clause  

as originally drafted was subjected to three important changes in the Constituent  

Assembly. Firstly, the reference to property was deleted from the above clause of the  

draft Constitution. The members of the Constituent Assembly perceived that retaining  

the right to property as part of the due process clause would pose a serious  

impediment to legislative reform particularly with the redistribution of property. The  

second important change arose from a meeting which Shri B N Rau had with Justice

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Felix Frankfurter in the US. In the US particularly in the years around the Great  

Depression, American Courts had utilised the due process clause to invalidate social  

welfare legislation. In the Lochner353 era, the US Supreme Court invalidated  

legislation such as statutes prohibiting employers from making their employees work  

for more than ten hours a day or sixty hours a week on the supposition that this  

infringed the liberty of contract. Between 1899 and 1937 (excluding the civil rights  

cases), 159 US Supreme Court decisions held state statutes unconstitutional under  

the due process and equal protection clauses. Moreover, 25 other statutes were  

struck down under the due process clause together with other provisions of the  

American Constitution.354 Under the due process clause, the US Supreme Court  

struck down labour legislation prohibiting employers from discriminating on the  

grounds of union activity; regulation of wages; regulation of prices for commodities  

and services; and legislation denying entry into business.355 These decisions were  

eventually distinguished or overruled in 1937 and thereafter.356   

160 The Constituent Assembly, in this background, made a second important  

change in the original draft by qualifying the expression ‘liberty’ with the word  

‘personal’. Shri B N Rau suggested that if this qualification were not to be introduced,  

                                                           353 Lochner v New York, 198 US 45 (1905)  354 William B Lockhart, et al, Constitutional Law: Cases- Comments-Questions, West Publishing Co. (1986), 6th  edition, at page 394   

355 Adair v United States, 208 US 161, 28 S. Ct. 277, 52 L.Ed. 436 (1908) (fifth amendment);      Adkins v Children’s Hosp. 261 US 525, 43 S.Ct. 22, 70 L.Ed (1923) (fifth amendment);      Tyson & Bro. v. Banton, 273 US 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927); and       New State Ice Co. v. Liebmann, 285 US 262, 52 S Ct. 371, 76 L.Ed. 747 (1932)    356 NLRB v Jones & Laughlin Stell Corp. (1937);      West Coast Hotel Co. v Parrish, 300 US 379, 57 S. Ct. 578, 81 L.Ed. 703 (1937)

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even price control legislation would be interpreted as interfering with the opportunity  

of contract between seller and buyer (see in this context B Shiva Rao’s ‘The Framing  

of India’s Constitution: A Study’357).  

161 The third major change which the Constituent Assembly made was that the  

phrase ‘due process of law’ was deleted from the text of the draft Constitution.  

Following B N Rau’s meeting with Justice Frankfurter, the Drafting Committee deleted  

the phrase ‘due process of law’ and replaced it with ‘procedure established by law’.  

Granville Austin refers to the interaction between Frankfurter and B N Rau and the  

reason for the deletion358 :   

“Soon after, Rau began his trip to the United States, Canada, Eire,  

and England to talk with justices, constitutionalists, and statesmen  

about the framing of the Constitution. In the United States he met  

Supreme Court Justice Felix Frankfurter, who told him that he  

considered the power of judicial review implied in the due process  

clause both undemocratic – because a few judges could veto  

legislation enacted by the representatives of a nation – and  

burdensome to the Judiciary. Frankfurter had been strongly  

influenced by the Harvard Law School’s great constitutional lawyer,  

James Bradley Thayer, who also feared that too great a reliance on  

due process as a protection against legislative oversight or  

misbehaviour might weaken the democratic process.  Thayer’s  

views had impressed Rau even before he met Frankfurter. In his  

Constitutional Precedents, Rau had pointed out that Thayer and  

others had ‘drawn attention to the dangers of attempting to find in  

the Supreme Court – instead of in the lessons of experience – a  

safeguard against the mistakes of the representatives of people’.”   

                                                           357 B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institute of Public Administration (1968), at    

page 235. See also B. Shiva Rao, The Framing of India’s Constitution, Vol. 2, at pages 20-36, 147-153  358 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page103

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Though several members of the Constituent Assembly spoke against the deletion, Sir  

Alladi Krishnaswamy Ayyar supported the move on the ground that the expression  

‘due process’ would operate as a great handicap for all social legislation and introduce  

“judicial vagaries into the moulding of law”359. In his words360 :  

“…In the development of the doctrine of ‘due process’ the United  States Supreme Court has not adopted a consistent  view at all and  the decisions are conflicting…  

The Minimum Wage Law or a Restraint on Employment have in  some cases been regarded as an invasion of personal liberty and  freedom, by the United States Supreme Court in its earlier  decisions, the theory being that it is an essential part of personal  liberty that every person in the world be she a woman, be he a child  over fourteen years of age or be he a labourer, has the right to enter  into any contract he or she liked and it is not the province of other  people to interfere with that liberty. On that ground, in the earlier  decisions of Supreme Court it has been held that the Minimum  Wages Laws are invalid as invading personal liberty…  

The clause may serve as a great handicap for all social legislation,  and for the protection of women…  

I trust that the House will take into account the various aspects of  this question, the future progress of India, the well-being and the  security of the States, the necessity of maintaining a minimum of  liberty, the need for co-ordinating social control and personal liberty,  before coming to a decision.  One thing also will have to be taken  into account, viz., that the security of the State is far from being so  secure as we are imagining at present…”   

 On the other hand, several members of the Constituent Assembly preferred the  

retention of the phrase ‘due process’, among them being Dr Sitaramayya, T T  

Krishnamachari, K Santhanam, M A Ayyangar, Dr B V Keskar, S L Saksena, Thakur  

                                                           359 Constituent Assembly Debates, Vol. 7 (6th December 1948), available at   http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm   360 Ibid

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Das Bhargava, Hukam Singh and four members of the Muslim League.361 K M Munshi  

stated that362 :  

“…a substantive interpretation of due process could not apply to  

liberty of contract – the basis on which the United States Supreme  

Court had, at the beginning of the century, declared some social  

legislation to be an infringement of due process and hence  

unconstitutional – but only to liberty of person, because ‘personal’  

had been added to qualify liberty. ‘When a law has been passed  

which entitles the government to take away the personal liberty of  

an individual, Munshi said, ‘the court will consider whether the law  

which has been passed is such as is required by the exigencies of  

the case and therefore, as I said, the balance will be struck between  

individual liberty and social control. Other Assembly members  

agreed: whilst not wishing to impede the passage of social reform  

legislation they sought to protect the individual’s personal liberty  

against prejudicial action by an arbitrary Executive.”  

 Dr B R Ambedkar in an insightful observation, presented the merits and demerits of  

the rival viewpoints dispassionately. In his words363 :  

“There are two views on this point. One view is this; that the  

legislature may be trusted not to make any law which would  

abrogate the fundamental rights of man, so to say, the fundamental  

rights which apply to every individual, and consequently, there is no  

danger arising from the introduction of the phrase ‘due process’.   

Another view is this : that it is not possible to trust the legislature;  

the legislature is likely to err, is likely to be led away by passion, by  

party prejudice, by party considerations, and the legislature may  

make a law which may abrogate what may be regarded as the  

fundamental principles which safeguard the individual rights of a  

citizen.  We are therefore placed in two difficult positions. One is to  

give the judiciary the authority to sit in judgment over the will of the  

legislature and to question the law made by the legislature on the  

ground that it is not good law, in consonance with fundamental  

principles.  Is that a desirable principle? The second position is that  

                                                           361 Granville Austin (Supra note 358), at page 105  362 Ibid, at pages 105-106  363 Constituent Assembly Debates, Vol. 7 (13th December 1948), available at   http://parliamentofindia.nic.in/ls/debates/vol7p25a.htm

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the legislature ought to be trusted not to make bad laws. It is very  

difficult to come to any definite conclusion.  There are dangers on  

both sides. For myself I cannot altogether omit the possibility of a  

Legislature packed by party men making laws which may abrogate  

or violate what we regard as certain fundamental principles  

affecting the life and liberty of an individual. At the same time, I do  

not see how five or six gentlemen sitting in the Federal or Supreme  

Court examining laws made by the Legislature and by dint of their  

own individual conscience or their bias or their prejudices be trusted  

to determine which law is good and which law is bad.  It is rather a  

case where a man has to sail between Charybdis and Scylla and I  

therefor would not say anything. I would leave it to the House to  

decide in any way it likes.”    

 The amendments proposed by some members to reintroduce ‘due process’ were  

rejected on 13 December 1948 and the phrase “due process of law” was deleted from  

the original draft Constitution. However, Article 22 was introduced into the Constitution  

to protect against arbitrary arrest and detention by incorporating several safeguards.  

162 In Gopalan, the Preventive Detention Act, 1950 was challenged on the ground  

that it denied significant procedural safeguards against arbitrary detention. The  

majority rejected the argument that the expression ‘procedure established by law’  

meant procedural due process.  Chief Justice Kania noted that Article 21 of our  

Constitution had consciously been drawn up by the draftsmen so as to not use the  

word ‘due process’ which was used in the American Constitution.  Hence it was  

impermissible to read the expression ‘procedure established by law’ to mean  

‘procedural due process’ or as requiring compliance with natural justice.  Justice  

Patanjali Sastri held that reading the expression ‘due process of law’ into the  

Constitution was impermissible since it would lead to those ‘subtle and elusive criteria’

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implied in the phrase which it was the deliberate purpose of the framers of our  

Constitution to avoid.  Similarly, Justice Das also observed that our Constitution  

makers had deliberately declined to adopt “the uncertain and shifting American  

doctrine of due process of law” which could not, therefore, be read into Article 21.   

Hence, the view of the majority was that once the procedure was established by a  

validly enacted law, Article 21 would not be violated.    

163 In his celebrated dissent, Justice Fazl Ali pointed out that the phrase ‘procedure  

established by law’ was borrowed from the Japanese Constitution (which was drafted  

under American influence at the end of the Second World War) and hence the  

expression means ‘procedural due process’. In Justice Fazl Ali’s view the deprivation  

of life and personal liberty under Article 21, had to be preceded by (i) a notice; (ii) an  

opportunity of being heard; (iii) adjudication by an impartial tribunal;  and (iv) an orderly  

course of procedure. Formulating these four principles, Justice Fazl Ali held thus:  

“…Article 21 purports to protect life and personal liberty, and it  

would be a precarious protection and a protection not worth having,  

if the elementary principle of law under discussion which, according  

to Halsbury is on a par with fundamental rights, is to be ignored and  

excluded. In the course of his arguments, the learned counsel for  

the petitioner repeatedly asked whether the Constitution would  

permit a law being enacted, abolishing the mode of trial permitted  

by the existing law and establishing the procedure of trial by battle  

or trial by ordeal which was in vogue in olden times in England. The  

question envisages something which is not likely to happen, but it  

does raise a legal problem which can perhaps be met only in this  

way that if the expression “procedure established by law” simply  

means any procedure established or enacted by statute it will be  

difficult to give a negative answer to the question, but if the word  

“law” includes what I have endeavoured to show it does, such an  

answer may be justified. It seems to me that there is nothing

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revolutionary in the doctrine that the words “procedure established  

by law” must include the four principles set out in Professor Willis’  

book, which, as I have already stated, are different aspects of the  

same principle and which have no vagueness or uncertainty about  

them. These principles, as the learned author points out and as the  

authorities show, are not absolutely rigid principles but are  

adaptable to the circumstances of each case within certain limits. I  

have only to add that it has not been seriously controverted that  

“law” in this article means valid law and “procedure” means certain  

definite rules of proceeding and not something which is a mere  

pretence for procedure.”364  

In Maneka, where the passport of the petitioner was impounded without furnishing  

reasons, a majority of judges found that the expression ‘procedure established by law’  

did not mean any procedure howsoever arbitrary or fanciful.  The procedure had to be  

fair, just and reasonable. The views of Justices Chandrachud, Bhagwati and Krishna  

Iyer emerge from the following brief extracts:  

“Chandrachud, J.:  

…But the mere prescription of some kind of procedure cannot ever  

meet the mandate of Article 21.  The procedure prescribed by law  

has to be fair, just and reasonable, not fanciful, oppressive or  

arbitrary.”365  

“Bhagwati, J.:  

The principle of reasonableness, which legally as well as  

philosophically, is an essential element of equality or non-

arbitrariness pervades Article 14 like a brooding omnipresence and  

the procedure contemplated by Article 21 must answer the test of  

reasonableness in order to be in conformity with Article 14.  It must  

be “right and just and fair” and not arbitrary, fanciful or oppressive;  

otherwise, it would be no procedure at all and the requirement of  

Article 21 would not be satisfied.”366  

                                                           364 Gopalan (Supra note 3), at pages 60-61 (para 77)  365 Maneka (Supra note 5), at page 323 (para 48)  366 Ibid, at page 284 (para 7)

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“Krishna Iyer, J.:   

…So I am convinced that to frustrate Article 21 by relying on any  

formal adjectival statute, however, flimsy or fantastic its provisions  

be, is to rob what the constitution treasures.  

…To sum up, “procedure” in Article 21 means fair, not formal  

procedure. “Law” is reasonable law, not any enacted piece.”367  

Soon after the decision in Maneka, the Supreme Court considered a challenge to the  

provisions for solitary confinement under Section 30(2) of the Prisons Act, 1894 which  

stipulated that a prisoner “under sentence of death” is to be kept in a cell apart from  

other prisoners. In Sunil Batra v Delhi Administration368, the Court pointed out that  

Sections 73 and 74 of the Penal Code which contain a substantive punishment by  

way of solitary confinement was not under challenge.  Section 30(2) of the Prisons  

Act was read down by holding that the expression “under sentence of death” would  

apply only after the entire process of remedies had been exhausted by the convict  

and the clemency petition had been denied.  Justice D A Desai, speaking for the  

majority, held that:   

“…the word “law” in the expression “procedure established by law”  

in Article 21 has been interpreted to mean in Maneka Gandhi’s case  

that the law must be right, just and fair and not arbitrary, fanciful or  

oppressive.”369  

                                                           367 Ibid, at page 338 (paras 82 and 85)  368 (1978) 4 SCC 494  369 Ibid, at pages 574-575 (para 228)

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Justice Krishna Iyer took note of the fact that our Constitution does not contain a due  

process clause and opined that after the decision in Maneka, the absence of such a  

clause would make no difference:  

“…true, our Constitution has no ‘due process’ clause or the VIIIth  

Amendment; but, in this branch of law, after Cooper and Maneka  

Gandhi the consequence is the same.”370  

164 A substantive challenge to the constitutional validity of the death penalty on a  

conviction on a charge of murder was raised in Bachan Singh371. The judgment  

noted:  

“136. Article 21 reads as under:  

“No person shall be deprived of his life or personal liberty  

except according to procedure established by law.”  

If this Article is expanded in accordance with the interpretative  

principle indicated in Maneka Gandhi, it will read as follows:  

“No person shall be deprived of his life or personal liberty  

except according to fair, just and reasonable procedure  

established by valid law."  

In the converse positive form, the expanded Article will read as  

below:  

“A person may be deprived of his life or personal liberty in  

accordance with fair, just and reasonable procedure  

established by valid law.””372  

Bachan Singh clearly involved a substantive challenge to the constitutional validity  

of a statutory provision. The majority adjudicated upon the constitutional challenge  

under Article 21 and held that it did not suffer from substantive or procedural invalidity.  

                                                           370 Ibid, at page 518 (para 52)  371 (1980) 2 SCC 684  372 Ibid, at page 730 (para 136)

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In his dissent373, Justice Bhagwati significantly observed that the word “procedure”  

under Article 21 would cover the entire process by which deprivation is effected and  

that would include not only “the adjectival” but also substantive part of law.  In the view  

of the Court:  

“The word ‘procedure’ in Article 21 is wide enough to cover the  

entire process by which deprivation is effected and that would  

include not only the adjectival but also the substantive part of  

law.”374  

In Mithu v State of Punjab375 (“Mithu”), a Constitution Bench considered the validity  

of Section 303 of the Penal Code which provided for a mandatory death penalty where  

a person commits murder while undergoing a sentence of life imprisonment. Section  

303 excluded the procedural safeguards under Section 235(2) and 354(3) of the  

Criminal Procedure Code under which the accused is required to be heard on the  

question of sentence and “special reasons” need to be adduced for imposing the  

death sentence. In the course of the judgment, Chandrachud C J indicated examples  

of situations where a substantive enactment could be challenged on the touchstone  

of Articles 14 and 21.  The observations of the Court, which are extracted below would  

indicate that while the Court did not use the expression “substantive due process” it  

recognised that a law would be amenable to challenge under Article 21 not only on  

the ground that the procedure which it prescribes is not fair, just and reasonable but  

                                                           373 (1982) 3 SCC 24  374 Ibid, at page 55 (para 17)  375 (1983) 2 SCC 277

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on the touchstone of having imposed a penalty which is savage or, as the Court held,  

an anathema of civilised jurisprudence :  

“These decisions have expanded the scope of Article 21 in a  

significant way and it is now too late in the day to contend that it is  

for the legislature to prescribe the procedure and for the courts to  

follow it; that it is for the legislature to provide the punishment and  

for the courts to impose it.  Two instances, undoubtedly extreme,  

may be taken by way of illustration for the purpose of showing how  

the courts are not bound, and are indeed not free, to apply a  

fanciful procedure by a blind adherence to the letter of the law  

or to impose a savage sentence. A law providing that an  

accused shall not be allowed to lead evidence in self-defence  

will be hit by Articles 14 and 21. Similarly, if a law were to  

provide that the offence of theft will be punishable with the  

penalty of the cutting of hands, the law will be bad as violating  

Article 21. A savage sentence is anathema to the civilized  

jurisprudence of Article 21.  These are, of course, extreme  

illustrations and we need have no fear that our legislatures will ever  

pass such laws. But these examples serve to illustrate that the  

last word on the question of justice and fairness does not rest  

with the legislature. Just as reasonableness of restrictions under  

clauses (2) to (6) of Article 19 is for the courts to determine, so is it  

for the courts to decide whether the procedure prescribed by a law  

for depriving a person of his life or liberty is fair, just and reasonable.   

The question which then arises before us is whether the sentence  

of death, prescribed by Section 303 of the Penal Code for the  

offence of murder committed by a person who is under a sentence  

of life imprisonment, is arbitrary and oppressive so as to be violative  

of the fundamental right conferred by Article 21.”376                             

(emphasis supplied)  

In A K Roy v Union of India377, dealing with the question of preventive detention, a  

Constitution Bench of this Court adverted to the conscious decision in the Constituent  

                                                           376 Ibid, at pages 284-285 (para 6)  377 (1982) 1 SCC 271

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Assembly to delete the expression ‘due process of law’ from Article 21. The Court held  

that:  

“The fact that England and America do not resort to preventive  

detention in normal times was known to our Constituent Assembly  

and yet it chose to provide for it, sanctioning its use for specified  

purposes. The attitude of two other well-known democracies to  

preventive detention as a means of regulating the lives and liberties  

of the people was undoubtedly relevant to the framing of our  

Constitution. But the framers having decided to adopt and legitimise  

it, we cannot declare it unconstitutional by importing our notions of  

what is right and wrong. The power to judge the fairness and  

justness of procedure established by a law for the purposes of  

Article 21 is one thing: that power can be spelt out from the  

language of that article. Procedural safeguards are the  

handmaids of equal justice and since, the power of the  

government is colossal as compared with the power of an  

individual, the freedom of the individual can be safe only if he  

has a guarantee that he will be treated fairly.  The power to  

decide upon the justness of the law itself is quite another  

thing: that power springs from a ‘due process’ provision such  

as is to be found in the 5th and 14th Amendments of the  

American Constitution by which no person can be deprived of  

life, liberty or property “without due process of law”.”378  

(emphasis supplied)   

In Saroj Rani v Sudarshan Kumar379, this Court upheld the constitutional validity of  

the provision for restitution of conjugal rights contained in Section 9 of the Hindu  

Marriage Act, 1955. The Court found that the provision served a social purpose of  

preventing the breakdown of marriages and contained safeguards against its being  

used arbitrarily.  

                                                           378 Ibid, at page 301 (para 35)  379 (1984) 4 SCC 90

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In Mohd. Arif v Supreme Court380, a Constitution Bench of this Court held that the  

expression “reasonable procedure” in the context of Article 21 would encompass an  

oral hearing of review petitions arising out of death penalties. Tracing the history of  

the evolution of Article 21, Justice Rohinton Fali Nariman, speaking for the majority in  

the Constitution Bench, observed as follows:  

“The wheel has turned full circle. Substantive due process is now to  

be applied to the fundamental right to life and liberty.”381  

More recently, Justice Chelameswar, speaking for a Bench of two judges in Rajbala  

v State of Haryana382, has struck a note of caution, by drawing attention to the  

position that the expression ‘due process of law’ was consciously deleted in the  

drafting process after the framing of the Constitution. Hence, in the view of the learned  

Judge, it would be inappropriate to incorporate notions of substantive due process  

adopted in the US while examining the constitutionality of Indian legislation. The Court  

observed:  

“From the above extract from McDowell & Co. case it is clear that  

the courts in this country do not undertake the task of  

declaring a piece of legislation unconstitutional on the ground  

that the legislation is “arbitrary” since such an exercise implies  

a value judgment and courts do not examine the wisdom of  

some specific provision of the Constitution.  To undertake  

such an examination would amount to virtually importing the  

doctrine of “substantive due process” employed by the  

American Supreme Court at an earlier point of time while  

examining the constitutionality of Indian legislation.  As pointed  

out in the above extract, even in United States the doctrine is  

currently of doubtful legitimacy.  This Court long back in A.S.  

                                                           380 (2014) 9 SCC 737  381 Ibid, at page 756 (para 28)  382 (2016) 2 SCC 445

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Krishna v. State of Madras [1957 SCR 399] declared that the  

doctrine of due process has no application under the Indian  

Constitution. As pointed out by Frankfurter, J. arbitrariness became  

a mantra.”383            (emphasis supplied)  

The constitutional history surrounding the drafting of Article 21 contains an abundant  

reflection of a deliberate and studied decision of the Constituent Assembly to delete  

the expression ‘due process of law’ from the draft Constitution when the Constitution  

was adopted.  In the Constituent Assembly, the Drafting Committee chaired by Dr B  

R Ambedkar had included the phrase but it came to be deleted after a careful  

evaluation of the vagaries of the decision making process in the US involving  

interpretation of the due process clause.  Significantly, present to the mind of the  

framers of our Constitution was the invalidation of social welfare legislation in the US  

on the anvil of the due process clause on the ground that it violated the liberty of  

contract of men, women and children to offer themselves for work in a free market for  

labour. This model evidently did not appeal to those who opposed the incorporation  

of a similar phrase into the Indian Constitution.    

Yet the debates in the Constituent Assembly indicate that there was a substantial  

body of opposition to the deletion of the due process clause, which eventually led Dr  

B R Ambedkar to objectively sum up the rival view points for decision by the House.  

Evidently ‘due process’ was substituted with the expression ‘procedure established by  

law’. ‘Liberty’ was qualified by ‘personal’.   

                                                           383 Ibid, at page 481 (para 64)