2017 Supreme(SC) 772

SUPREME COURT OF INDIA
JAGDISH SINGH KHEHAR, CJI., J. CHELAMESWAR, S.A. BOBDE, R.K. AGRAWAL, ROHINTON FALI NARIMAN, ABHAY MANOHAR SAPRE, D.Y. CHANDRACHUD, SANJAY KISHAN KAUL, S. ABDUL NAZEER, JJ.
JUSTICE K S PUTTASWAMY (RETD.), AND ANR. – Petitioners
VERSUS
UNION OF INDIA AND ORS. – Respondents
WRIT PETITION (CIVIL) NO 494 OF 2012 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 of 2012 T.P.(CIVIL) NO 313 OF 2014 T.P.(CIVIL) NO 312 OF 2014 S.L.P(CRL.) NO.2524 of 2014 W.P.(CIVIL) NO.37 of 2015 W.P.(CIVIL) NO.220 of 2015 CONMT. PET. (C)NO.674 of 2015 IN W.P.(C) NO.829 of 2013 T.P.(CIVIL)NO.921 of 2015 CONMT.PET.(C)NO.470 of 2015 IN W.P.(C) NO.494 of 2012 CONMT.PET.(C)NO.444 of 2016 IN W.P.(C) NO.494 of 2012 CONMT.PET.(C)NO.608 of 2016 IN W.P.(C) NO.494 of 2012 W.P.(CIVIL) NO.797 of 2016 CONMT.PET.(C)NO.844 of 2017 IN W.P.(C) NO.494 of 2012 W.P. (C) NO. 342 of 2017 AND WITH W.P.(C) NO.000372 of 2017
Decided On : 24-08-2017

IMPORTANT POINTS
Life and personal liberty are inalienable rights, inseparable from a dignified human existence.
Privacy is a constitutionally protected right.
Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution.
Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.
The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted.
Privacy is not an absolute right, but a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.
Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
Need to examine and put into place a robust regime for data protection Commended to the Union Government.
The decision in M P Sharma and in Kharak Singh stands over-ruled;
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Headnote:Per Dr. D.Y. Chandrachud, J. (Majority view – for himself, J.S. Khehar CJI, R.K. Agrawal, and S. Abdul Nazeer, JJ.)

       (a) Constitution of India – Article 21 – Guaranteeing ‘personal liberty’ – Encompassing ‘ordered liberty’ – Integral elements – Sanctity of home and protection against unauthorized intrusion. (Para 16)

       (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; (1967) 3 SCR 525 – Relied upon

       (1954) SCR 1077 – Referred

       (b) Constitution of India – Article 21 and 19(1)(d) – Keeping watch over movements of suspect – a Neither infringes Article 19(1)(d) not attracts Article 21 – Right of privacy not guaranteed under Constitution but essential to personal liberty – a (Para 16, 18)

       (c) Constitution of India – Articles 19 and 21 – Personal liberty in Article 21 covers variety of rights – Some raised to status of distinct fundamental rights and given additional protection under Article 19 – Therefore a law providing for deprivation of life or personal liberty must lay down a procedure which is fair, just and reasonable – Article 14. (Para 23, 24)

       (1967) 3 SCR 525; (1970) 1 SCC 248; (1978) 1 SCC 248 – Relied upon

       (1954) SCR 1077; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383 – Distinguished

       (d) Jurisprudence – Change in law over the years – Settled position as of now – Fundamental rights emanate from basic notions of liberty and dignity – Enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit – Validity of a law infringing fundamental rights to be tested not with reference to the object of state action but on basis of its effect on guarantees of freedom – 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. (Para 24)

       (1967) 3 SCR 525; (1970) 1 SCC 248; (1978) 1 SCC 248 – Relied upon

       (1954) SCR 1077; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383 – Distinguished

        (e) Interpretation – Judgment – Constitution of India – Article 21 – MP Sharma and Kharak Singh – MP Sharma not deciding whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including right to life and personal liberty under Article 21 – The decision cannot be construed to specifically exclude protection of privacy under Articles 19 or 21 – Kharak Singh held night domiciliary visits to be unauthorized intrusion into a person’s home and a violation of ordered liberty – Later, however, held that right of privacy is not guaranteed under the Constitution and hence Article 21 had no application – Kharak Singh suffers from internal inconsistency – Absence of an express constitutional guarantee of privacy – Question as to privacy being an element of liberty and, as an integral part of human dignity, being comprehended within the protection of life as well – Still open. (Para 26, 27)

       (1954) SCR 1077; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; 338 US 25 : 93 L Ed 1782 (1949) – Referred

       (f) Right to privacy – Basis – Protecting dignity of individual – Extent of privacy in public places may be different than in sanctity of home – But that does not denude right to privacy in public places – Privacy also considered inalienable property – Right “to be let alone” a manifestation of “an inviolate personality” – A part of right to enjoy life – Need to protect privacy becomes more necessary with development and technological changes. (Para 32, 33, 34, 36, 39)

       (g) Natural rights – Are inalienable – Not bestowed by the state – Secures autonomy to human beings, though the autonomy is not absolute. (Para 40, 44, 45)

       (h) Right to privacy – Concept of privacy overlaps with liberty – If found to be protected as fundamental right – Could be overridden only for compelling interest of the State. (Para 49)

       (1973) 1 SCC 471; (1975) 2 SCC 148; 381 US 479 (1965); 410 US 113 (1973) – Relied upon

       (i) Constitution of India – Articles 19 and 21 – Right to privacy – Not absolute – Subject to action lawfully taken to prevent crime or disorder or to protect health, morals and the rights and freedoms of others – Public disclosure of even true facts may amount to invasion of right to privacy on breach of confidentiality – As regards documents, privacy attaches to persons and not places – Privacy of document has to be preserved even if it is deposited with an authority like Bank – Power of search and seizure cannot be exercised arbitrarily – Such power cannot be delegated to private individuals – A person does not lose right to privacy merely by parting with information to some authority or bank – The individual is not deprived of his privacy interest – State must take care to ensure that the information is not accessed by a private entity – a Right to make reproductive choices an ingredient of personal liberty under Article 21 – Emanating from a woman’s right to privacy, dignity and bodily integrity – Section , MTP Act, 1971 – The right of an accused not to be

       compelled to speak or to incriminate oneself an embodiment of the right to privacy – Articles 20(3) and 21 – Nobody can be compelled to reveal his bank accounts to the public at large – Right to privacy and right to information have to be balanced – Right to privacy – An expression of individual autonomy, dignity and identity. (Para 57, 65, 66, 72, 74, 78, 80, 84)

       (1981) 1 SCC 420; (1991) 1 SCC 57; (1994) 6 SCC 632; (1998) 8 SCC 296; (1997) 1 SCC 301; (2000) 4 SCC 75; (2002) 10 SCC 743; (2003) 4 SCC 493; (2005) 1 SCC 496; 116 US 616 (1886); 277 US 438 (1928); 381 US 479 (1965); 389 US 347 (1967); (2007) 1 SCC 789; (2008) 2 SCC 370; (2008) 3 SCC 1; (2008) 5 SCC 33; (2008) 13 SCC 5; (2009) 9 SCC 1; (2009) 9 SCC 551; (2010) 7 SCC 263; (2010) 8 SCC 633; (2011) 7 SCC 69; (2011) 7 SCC 69; (2011) 8 SCC 1; (2011) 13 SCC 155; (2012) 5 SCC 1; (2012) 13 SCC 61; (2013) 14 SCC 643; (2013) 16 SCC 82; (2014) 5 SCC 438; (2016) 5 SCC 1 – Relied upon

       (1992) 3 SCC 637; (1985) 1 SCC 641; (2014) 9 SCC 1; (2015) 10 SCC 1 – Referred

       (j) Interpretation – Constitution – Article 21 – Has to be interpreted in conformity with international law. (Para 60)

       (k) Constitution of India – Articles 19 and 21 – Right to privacy – Covers intimate matters such as family, marriage and procreation – Right to privacy not absolute but subject to regulation under compelling state interest. (Para 90)

       (1975) 2 SCC 148 : 1975 SCC (Cri) 468 – Relied upon

       (l) Interpretation of statute – International law – Construction – As a part of domestic law, in absence of any law to the contrary – Resulting in recognizing right to privacy in different contexts – Lack of doctrinal basis to determine constitutional protection to right to privacy – Question did not arise in M P Sharma – Kharak Singh dealt with the question in a somewhat inconsistent manner – Gobind rested on assumption – Question of constitutional protection to right to privacy remains open. (Para 91, 92)

       (1954) SCR 1077; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; (1975) 2 SCC 148 : 1975 SCC (Cri) 468– Referred

       (m) Constitution of India – Preamble – Different from preamble in legislative enactments – Marked by deep deliberation and precision – Part of the Constitution – Emphasises need to secure to all citizens justice, liberty, equality and fraternity – Dignified existence to the individual – Adoption of a democratic way of life, founded on the rule of law accepting differences of perception, acknowledging divergences in ways of life, and respecting dissent. (Para 94, 95)

       (1965) 1 SCR 933; (1973) 4 SCC 225 – Relied upon

       (n) Constitution of India – Preamble, Articles 14; 19 and 21 – Dignity – A constitutional value – Finds expression in Preamble and reflections in Articles 14; 19 and 21 – Intrinsic to and inseparable from human existence – Not something which is conferred and which can be taken away – It is inalienable – State’s duty to safeguard the individual’s ability to take decisions – the autonomy of the individual – Privacy ensures fulfilment of dignity. (Para 96, 101, 106, 107)

       (1980) 3 SCC 526; (1981) 1 SCC 608; (1984) 3 SCC 161; (1994) 6 SCC 260; (2006) 8 SCC 212; (2010) 3 SCC 786; (2010) 7 SCC 263; (2012) 8 SCC 1; (2014) 5 SCC 438; (2015) 6 SCC 702; (2016) 7 SCC 761;

       (0) Constitution of India – Part III – Fundamental rights – Are primordial rights traditionally regarded as natural rights – Inseparable from human existence. (Para 108)

       (1967) 2 SCR 762; (1973) 4 SCC 225; (1975) 1 Suppl. SCC 1; (1980) 3 SCC 625 – Referred

       (p) Constitution of India – Part III – Fundamental rights – Not capable of being waived. (Para 112)

       (1955) 1 SCR 613 – Relied upon

       (q) Constitution of India – Article 21 – Privacy – Not independent of liberties guaranteed by Part III – Recognizing privacy as constitutional entitlement and interest – Is not adding a new fundamental right by judicial fiat – By doing so Court merely determines the nature and extent of the freedoms available to citizens – Protections governing different facets of a dignified existence fall within the protection of Article 21 – Courts should expand rather than attenuate the content of fundamental human freedoms through a constricted judicial interpretation – Dignity is associated with liberty and freedom – Sexual orientation is an essential attribute of privacy – Sexual orientation of each individual must be protected alike – Right to privacy and protection of sexual orientation lie at the core of fundamental rights – Articles 14, 15 and 21, Constitution of India – De minimis rationale not applicable. (Para 113, 115, 119, 127, 128)

       (1985) 3 SCC 545; (1993) 1 SCC 645 – Relied upon

       (2007) 2 SCC 1 – Referred

       274 US 200 (1927); 323 US 214 (1944); (2014) 1 SCC 1 – Distinguished

       (1976) 2 SCC 521; (1977) 1 SCC 834 – Overruled

       (r) Constitution of India – Article 51 – Recognition of privacy as a fundamental constitutional value – Part of India’s commitment to a global human rights regime – Section 12(f), Protection of Human Rights Act, 1993 – No contradiction between India’s international obligations and the Constitution – Constitutional provisions must be read and interpreted as to enhance their conformity with global human rights regime. (Para 129, 133,

       (1980) 2 SCC 684; (1997) 6 SCC 241 – Relied upon

       (s) Interpretation of constitution – Comparative approach – Foreign judgments – Must be read with circumspection. (Para 134)

       (t) Privacy jurisprudence – Guarantee of right to privacy incorporated into UK domestic law by Human Rights Act, 1998 – US Constitution not containing express right to privacy – But protected under several amendments – Right to be let alone – Most comprehensive of rights, and the right most valued by civilized men – Fourth Amendment – Protection extended from place to people affording individuals more privacy even in public – Right to privacy must be balanced against State's interests – Right to privacy may be limited by a regulation governed by sufficient ‘compelling state interest’ – Scope of privacy is closely related to identity – Based on one’s notion of what is necessary for his own autonomous identity – Right to privacy has its limits – Discrimination leads to invasion of privacy – Supreme Court of South Africa acknowledges that right to privacy does not exist in a vacuum – It gave an expansive meaning to the right, making significant inter-linkages between equality, privacy and dignity – Privacy Act in Canada has a quasi-constitutional status – Section 7 and 8, Canadian Charter of Rights and Freedoms of 1982 – Informational privacy – Canadian Supreme court held that information of a “personal and confidential” nature are constitutionally protected – Personal privacy, territorial privacy and informational privacy – Distinction – Article 8, European Convention on Human Rights (ECHR). (Para 134)

       77 ER 194) (1604); (1765)19 St. Tr. 1029 (1765); (1849) 41 ER 1171 (1849); ([1993] AC 1) (1993); [2004] 2 AC 457) (2004); [2003] QB 195) (2003); [2002] EWCA Civ 337, [2003] QB 195, 202; [2006] QB 125; [2006] EWCA Civ 1776) (2006); [2008] 3 WLR 1360) (2008); [2011] UKSC 21) (2011); [2015] UKSC 42) (2015); [2016] UKSC 26) (2016); 116 US 616 (1886); 262 US 390 (1923); (268) US 510 (1925); 381 US 479 (1965); 389 US 347 (1967); 394 US 557 (1969); 405 US 438 (1972); 413 US 49 (1973); 410 US 113 (1973); 425 US 435 (1976); 431 US 678 (1977); 442 US 735 (1979); 505 US 833 (1992); 525 US 83 (1998); 533 US 27 (2001); 539 US 558 (2003); 562 US 134 (2011); 433 US 425 (1977); 565 US 400 (2012); 569 US 1 (2013); 573 US __ (2014); 569 US 1 (2013); 576 US __ (2015); 1996 (3) SA 262 (A); 1996 (2) SA 751 (CC); 1999 (1) SA 6 (CC); 2001 (1) SA 545 (CC); 2006 (1) SA 524 (CC); 2007 (5) SA 250 (CC); [2002] 2 SCR 773; [1984] 2 SCR 145; [1988] 2 SCR 417; [1993] 3 S.C.R. 281; (2004) SCC 67; (2014) SCC 43; Application no. 13710/88 (1992); Application no. 13134/87 (1993); [2008] ECHR 1581; Application No. 35623/05 (2010); C-468/10, 24 November, [2011] ECR I-nyr; C-293/12 (2014); Application No. 62498/11 (2015); Application No. 47143/06 (2015); Inter-Am. Ct. H.R. (Ser. C) No. 257 (2012); (C-293/12) (2014); Application No. 62498/11 (2015); Application No. 47143/06 (2015); Inter-Am. Ct. H.R. (Ser. C) No. 257 (2012); PART L 193(2009) – Relied upon

       [1991] FSR 62) (1991); [2004] 2 AC 406) (2004); [2001] QB 967) (2001); 277 US 438 (1928); 478 US 186 (1986); 495 U. S. 91 (1990); 425 US 435 (1976) – Referred

       (u) Privacy doctrine – Types of recognizable privacy – (i) bodily privacy – Privacy of the physical body – Freedom to defend and freedom of bodily movement – (ii) spatial privacy – Privacy of a private space – Intimate relations and family life – (iii) communicational privacy – Enabling an individual to restrict access to communications or control the use of information which is communicated to third parties – (iv) proprietary privacy – Interest of a person in utilising property as a means to shield facts, things or information from others – (v) intellectual privacy – Individual interest in the privacy of thought and mind and the development of opinions and beliefs – (vi) decisional privacy – Ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations – (vii) associational privacy – Ability of individual to choose who he/she wishes to interact with – (viii) behavioural privacy – Privacy interests of a person even while conducting publicly visible activities – Even when access is granted to others, entitlement of the individual to control the extent of access and preserve to him/herself a measure of freedom from unwanted intrusion – (ix) informational privacy – An interest in preventing information about the self from being disseminated and controlling the extent of access to information. (Para 142)

       (v) Interpretation of statute – Constitution – Interpretation of Constitution cannot be frozen by its original understanding – It has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. (Para 149)

       (x) Privacy jurisprudence – Articles 14, 19 and 21, Constitution of India – Judicial interpretation – evolution of a jurisprudence recognising inter-relationship between rights – In present times of fast technological developments, question of privacy must be left open to meet the challenges to privacy that may arise in future – The solutions must continuously undergo a process of re-engineering. (Para 149, 151)

       (y) Privacy jurisprudence – Rights under Articles 19 and 21 overlap – A law affecting one of the personal freedoms under Article 19 would, will also have to meet the parameters of a valid ‘procedure established by law’ under Article 21 where it impacts on life or personal liberty – Rights under Article, as enlarged by judicial interpretation, include: right to go abroad, right against solitary confinement, right of prisoners against bar fetters, right to legal aid, right to speedy trial, right against handcuffing, right against custodial violence, right against public hanging, right to doctor’s assistance at government hospitals, right to shelter, right to a healthy environment, right to compensation for unlawful arrest, right to freedom from torture, right to reputation, right to earn a livelihood. (Para 150)

       (1970) 1 SCC 248; (1978) 1 SCC 248; (1967) 3 SCR 525; (1978) 4 SCC 494; (1978) 4 SCC 104; (1978) 3 SCC 544; (1980) 1 SCC 81; (1980) 3 SCC 526; (1983) 2 SCC 96; (1989) Suppl.(1) SCC 264; (1989) 4 SCC 286; (1990) 1 SCC 520; (1995) 2 SCC 577; (1983) 4 SCC 141; (1978) 4 SCC 494; (2013) 10 SCC 591; (1985) 3 SCC 545 – Relied upon

       (z) Constitutional law – Statutory rights and constitutional rights – Statutory rights are within legislative domain and conferred by legislation – Open to modification or annulment by legislature – Constitutional rights, on the other hand, are beyond the pale of legislative modification – Therefore existence of law conferring a right cannot be a rationale for the right to be accorded status of a constitutional right. (Para 153)

       (aa) Right to privacy – Not an elitist construct – Civil and political rights not subservient to socio-economic rights – Civil and political rights and socio-economic rights are complementary and not mutually exclusive – Development and freedom are intrinsically related – 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 – These are facets of right of privacy to which every individual is entitled. (Para 154, 155, 156, 157)

       (2002) 5 SA 721 (CC) – Referred

       (ab) Right to privacy – Protection of a right at common law not a bar to its constitutional recognition – Privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by Part III of the Constitution – Constitutional protection liberates privacy from uncertainties of statutory law which is subject to the range of legislative annulments open to a majoritarian government – Article 21, Article 19 Constitution of India or the relevant freedom, both negative and positive – Negative freedom protects the individual from unwanted intrusion – Positive freedom of privacy obliges the State to adopt suitable measures for protecting individual privacy. (Para 158)

       (ac) Right to privacy – Due process of law – ‘Procedure established by law’ – Expression ‘procedure established by law’ cannot be read to mean ‘procedural due process’ or as requiring compliance with natural justice – But the procedure has to be fair, just and reasonable and the law valid – Personal liberty. (Para 162, 163, 164, 165)

       AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383; (1978) 1 SCC 248; (1978) 4 SCC 494; (1980) 2 SCC 684; (1983) 2 SCC 277; (1982) 1 SCC 271; (1984) 4 SCC 90; (2014) 9 SCC 737; (2016) 2 SCC 445 – Relied upon

       198 US 45 (1905); 208 US 161, 28 S. Ct. 277, 52 L.Ed. 436 (1908); 261 US 525, 43 S.Ct. 22, 70 L.Ed (1923); 273 US 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927); 285 US 262, 52 S Ct. 371, 76 L.Ed. 747 (1932); 300 US 379, 57 S. Ct. 578, 81 L.Ed. 703 (1937); AIR 1951 SC 41; AIR 1958 SC 538; AIR 1961 SC 954; (1970) 2 SCR 537; (1981) 4 SCC 675; AIR 1997 SC 1511; (2003) 9 SCC 564; (2004) 4 SCC 311; (2005) 8 SCC 534; (2010) 12 SCC 1; (2011) 9 SCC 1; (2012) 6 SCC 312; (2013) 1 SCC 745; (1981) 4 SCC 675; AIR 1984 SC 1543; (1996) 3 SCC 709; (2004) 10 SCC 1; (2007) 6 SCC 586; (2011) 9 SCC 1; 2012 (1) SCALE 646 – Referred

       (ad) Right to Privacy – Right to be let alone – Autonomy of the individual – A postulate of human dignity – Privacy is a sub set of liberty – Lies across the spectrum of protected freedoms – Dignity cannot exist without privacy – Subjective and objective nature of privacy – Extent of the zone of privacy of an individual is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation. (Para 168, 169)

       (ae) Informational privacy – Use of internet leaving behind track of information which, in aggregation, provides a picture of the being: of things which matter and those that don’t, of things to be disclosed and those best hidden – Browsing history is used to create user’s profile – Automated content analysis deduces user interests – A woman purchasing pregnancy related medicines on-line would be in line to receive advertisements for baby products – Lives are open to electronic scrutiny – Privacy concerns are seriously an issue in the age of information – Information is non-rivalrous, invisible and recombinant – Data can be used by many users simultaneously – Difficult to detect invasion of data privacy because of its speed – data output can be used as an input to generate more data output – Use of data Mining processes together with knowledge discovery may result in creation of new knowledge about individuals; something which even she or he did not possess – Challenges to privacy interests posed by big data emanate from State and non-State entities – Legitimate concerns of the State and individual interest in the protection of privacy need to be delicately balanced. (Para 170, 171, 173, 174, 176)

       (af) Right to privacy – Emerging issue – Protection of one’s identity – Data protection – Consent and transparency – Receipt of data and its transfer and use – Non-discrimination – Terrorist activities and cyber-attacks – State intervention – Requirements – Existence of a valid law – Need to intervene – Proportionality of the means to the object – Data collected by State ought not to be utilised unauthorizedly for extraneous purposes. (Para 177, 178, 179, 180, 181)

       (ag) Anonymity and privacy – Both prevent others from gaining access to pieces of personal information – Yet they do so in opposite ways – Privacy hides information – Anonymity hides what makes it personal – Unauthorised sharing of medical records of an individual by a hospital will amount to an invasion of privacy – Use of hospital data maintaining anonymity of patients for dealing with a medical epidemic would be legitimate. (Para 182)

       (ah) Right to privacy – Intrinsic element of right to life and personal liberty under Article 21, Constitution of India – Like the right to life and liberty, privacy is also not absolute – same limitations apply to all three – Nine privacy principles for enacting legislation protecting privacy culled – Data protection norms. (Para 183, 184, 185)

       Per J. Chelameswar, J. (Concurring)

       (ai) Right of privacy – Whether constitutional right – The question: ‘Does the rule against “testimonial compulsion”, entrenched as a fundamental right under our Constitution create a right of privacy?’ not examined in M.P. Sharma – Cannot be concluded that the Court held that ‘there is no right of privacy under our Constitution’ – Article 20(3), Constitution of India – Whether right of privacy is implied in any other fundamental right guaranteed under Articles 21, 14, 19 or 25 etc. also not examined in M.P Sharma. (Para 6, 7)

       AIR 1954 SC 300; 116 US 616 – Referred

       (aj) Interpretation of Constitution – Text and context – Text of the Constitution is only the primary source for understanding the Constitution – The silences of the Constitution are also to be ascertained to understand the Constitution. (Para 7)

       381 US 479; 410 U.S. 113 (1973); AIR 1950 SC 27; (1978) 1 SCC 248 – Referred

       (ak) Constitution of India – Article 21 – Decision in Kharak Singh – Incongruence – Holding on the one hand that English Common Law maxim “every man’s house is his castle” forming basis of U.S. Fourth Amendment and is required to be read into Article 21 – On the other hand declining to read the right of privacy into Article 21 – Holding that there is no right to privacy under our Constitution. (Para 9)

       AIR 1963 SC 1295; AIR 1950 SC 27; (1970) 1 SCC 248; (1978) 1 SCC 248; 338 US 25; (1604) 5 Coke 91 – Referred

       (al) Interpretation of statute – Constitution – Reading implications into the provisions – Implications are logical extensions of stipulations in the express language of the statute – Arise only when a statute is silent on certain aspects – Implications are the product of the interpretative process, of silences of a Statute – Basic structure of the Constitution, restrictions on freedom to speech and expression, right to speedy and public trial, right to life, right to education etc. read into Article 21 – Savage sentence held anathema to the civilized jurisprudence of Article 21 – Preamble of the Constitution outlines the objectives of the whole constitution expressing “what we had thought or dreamt for so long” – Fundamental rights are incorporated to ensure achievement of the objects contained in the Preamble for the people of India. (Para 12, 14, 15, 18)

       (1947) 74 CLR 31; (1973) 4 SCC 225; AIR 1976 SC 1207; AIR 1962 SC 305; AIR 1950 SC 124; AIR 1983 SC 473; (1985) 3 SCC 545; (1992) 3 SCC 666; (1993) 1 SCC 645; (1997) 7 SCC 622; (2003) 8 SCC 361; (1990) 1 SCC 520; (2000) 6 SCC 2013; 1967 (3) SCR 525; (1980) 1 SCC 81; (1983) 2 SCC 68; (2016) 10 SCC 726; AIR 1958 SC 956; AIR 1956 SC 479 – Referred

       (am) Constitution of India – Part III – Fundamental rights – Are a protective wall against State’s power to destroy the liberty of the SUBJECTS – Some rights in our Constitution more crucial to pursuit of happiness of the people and are called fundamental rights – Inter-relationship between Articles 14, 19 and 21 – Personal liberty – Any law depriving any person of the liberty guaranteed under Article 21 must not only be just, fair and reasonable, but must also be in strict compliance with one of the corresponding clauses 2 to 6 of Article 19 – rights guaranteed under Articles 14 and 21 are not confined only to citizens but available even to non-citizens aliens or incorporated bodies even if they are incorporated in India etc. (Para 20, 24, 25, 28)

       (1970) 2 SCC 298: (1971) 1 SCR 512 – Relied upon

       AIR 1950 SC 27: 1950 SCR 88 : 1950 Cri LJ 1383; (1970) 1 SCC 248; (1978) 1 SCC 248; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; AIR 1955 SC 367; AIR 1963 SC 1811; AIR 1964 SC 1140; AIR 1978 SC 104; (1991) 3 SCC 554 – Referred

       (an) Constitution of India – Part III – Fundamental rights – Each one of the guaranteed fundamental rights should not be seen as a series of isolated points, but as a rational continuum of the legal concept of liberty – They comprise freedom from all substantial, arbitrary encroachments and purposeless restraints sought to be made by the State – Claims for protection of privacy interests can arise against the State and its instrumentalities as also against non-State entities – a (Para 30, 32)

       (1975) 2 SCC 148 – Referred

       (ao) Right of privacy – “Repose”, “sanctuary” and “intimate decision” – Right of privacy covers decision making as regards freedom of association, freedoms of travel and residence being purely private and intimate decisions. (Para 36, 40)

       381 US 479(1965); (1976) 64 California Law Review 1447; 394 U.S. 557 (1969); (1986) 3 SCC 55; (1986) 3 SCC 615; 316 U.S. 535 (1942); (1978) 1 SCC 248; 179 U.S. 270 (1900) – Relied upon

       (ap) Right of privacy – Extent of imposable limitations – Reasonableness as per Articles 14, 19 and 21 of the Constitution – The law limiting right of privacy must be just, fair and reasonable – Test of compelling state interest must depend upon the context of concrete cases. (Para 43, 45)

       AIR 1974 SC 555; 304 U.S. 144 (1938); AIR 2005 SC 186; (2008) 13 SCC 5 – Referred

       Per S.A. Bobde, J. (Concurring)

       (aq) Right of privacy – Whether constitutional right – M.P. Sharma not considering whether Article 21 of the Constitution encompasses a fundamental right to privacy – Kharak Singh also not holding that no constitutional right to privacy exists – Subsequent decisions requiring reading Part III’s guarantees of rights together – Part III now conceived as a constellation of harmonious and mutually reinforcing guarantees, does not attempt to delineate rights specifically – Guarantee to the right to ‘life’ under Article 21 of Constitution encompasses such varied rights as the right to go abroad, the right to livelihood, and the right to medical care. (Para 4, 6, 7, 8)

       1954 SCR 1077; AIR 1963 SC 1295; (1604) 5 Coke 91; (1970) 1 SCC 248; (1978) 1 SCC 248; AIR1950 SC 27; (1985) 3 SCC 545; (1989) 4 SCC 286; (1975) 2 SCC 148 – Referred

       (ar) Privacy rights – Evolution from natural rights to common rights and finally to fundamental rights – Constitution of India, Part III – Privacy is a common law right as well as fundamental right having identical content – Only difference between the two being in the incidence of burden and the forum for enforcement. (Para 13, 14, 15, 18)

       (1604) 5 Coke 91; (1973) 4 SCC 225; (2005) 2 SCC 436; (2012) 6 SCC 1 – Referred [Para 13]

       (as) Constitution of India – Article 21 – ‘Life’ and ‘privacy’ – Difficulty in defining precisely – Not an impediment in recognizing a right and treating it as fundamental on strong constitutional grounds. (Para 19)

       (at) Privacy rights – Not confined only to intimate spaces such as the bedroom or the washroom – Goes with a person even in a public place – A conglomeration of individuals in a space to which the rights of admission are reserved, as in a hotel or a cinema hall, must be regarded as private. Nor is the right to privacy lost when a person moves about in public – Legal requirement of specific authorization for search of a person – Privacy, a basic condition necessary for the exercise of ‘personal liberty’ and freedoms guaranteed by the Constitution. (Para 22, 25)

       50 S.E. 68; (2005) 1 SCC 496 – Referred

       (au) Constitution of India – Article 21 – ‘Life’, ‘personal liberty’ and ‘dignity’ – Privacy, both mental and physical, necessary as enabler of guaranteed freedoms – Dignity cannot be assured without privacy. (Para 30)

       57 U. CHI. L. REV. 1057 (1990); (1877) 94 US 113; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; (1978) 4 SCC 494 – Referred

       (av) Privacy rights – Essential for exercise of freedoms under Articles 19(1), 20(3), 25, 26, and 28(3) – Also integral to cultural and educational rights – Enumeration not exhaustive. (Para 32, 33, 34)

       (1993) SCC 1 645 – Relied upon

       (1967) 3 SCR 525; (1975)2 SCC 148; 381 US 479; (1978) 4 SCC 494; (1978)4 SCR 104; (1978) 3 SCC 544; (1980)1 SCC81; (1980) 3 SCC 526; (1983) 2 SCC 68; (1983) 2 SCC 96; (1989) Supp. 1 SCC264; (1989) 4 SCC 286; (1990) 1 SCC 520 – Referred

       (aw) Privacy rights – Though fundamental, yet not absolute – Reasonable restriction permissible. (Para 38)

       (ax) Privacy rights – A relational right notwithstanding its content frequently excluding others – Any State interference must be fair, just and reasonable, not fanciful, oppressive or arbitrary. (Para 42, 44, 45, 46)

       (1956) SCR 756; (1978) 1 SCC 248; (1970) 2 SCC 298 : (1971) 1 SCR 512 – Relied upon

       Per R.F. Nariman, J. (Concurring)

       (ay) Privacy rights – Right to be let alone – Evolution – Articles 14 and 19(1) read into Article 21 – Procedure for restricting or regulating fundamental rights – Must be fair, just and reasonable. (Para 22)

       1954 SCR 1077; (1964) 1 SCR 332; (1970) 1 SCC 248; (1978) 1 SCC 248; (1975) 2 SCC 148; 77 ER 194; 95 ER 768 (1763); 95 ER 807 (1765); 98 ER 1331 (1778); 285 U.S. 393; 1950 SCR 88; (2014) 9 SCC 737; (1983) 2 SCC 277; (1980) 2 SCC 684; (1962) 3 SCR 786; (1973) Supp. SCR 1; – Referred

       (az) International treaties etc. – Effect – Position in India different from both U.K. and U.S.A. – Decisions of English and American courts therefore are of no avail – In the absence of any specific prohibition in municipal law, international law forms part of Indian law – Therefore international law must be read into or as part of fundamental rights. (Para 28, 29)

       (1980) 2 SCC 684; (1981) 1 SCC 608; (1997) 6 SCC 241; (2014) 5 SCC 438 – Relied upon

       (ba) Constitution of India – Interpretation – Governs lives of the citizens – Must be interpreted to respond to the changing needs of society at different points in time – Constitution framers distinctly avoiding ‘due process’ clause – By the time of Mohd. Arif substantive due process considered part and parcel of Article 21. (Para 43, 44)

       (2014) 9 SCC 737– Referred

       (bb) Constitution of India – Article 21 – Life and personal liberty – Privacy rights – No antipathy whatsoever between the rich and the poor – Lack of definition not an impediment in recognising privacy rights and interests when seen – Parting of personal information – Voluntary and otherwise. (Para 45, 46, 47)

       425 US 435 (1976); (2005) 1 SCC 496 : AIR 2005 SC 186 – Referred

       (bc) Privacy rights – Whether fundamental right – Privacy rights like right to live with dignity not expressly mentioned in Article 21 – But latter has been read into it – Held, concept of privacy contained not merely in personal liberty, but also in dignity of the individual. (Para 48, 50)

       (1980) 2 SCC 360; (1978) 4 SCC 494; (1980) 3 SCC 526 – Relied upon

       22 L.Ed. 2d 542 – Referred

       (bd) Right to privacy – Taxation, census and laws requiring personal information – Prohibit dissemination of the information except under specified circumstances which have relation to some legitimate or important State or societal interest. (Para 53)

       (1995) 1 SCC 574; (1967) 3 SCR 50; (1975) 1 SCC 737 – Referred

       (be) Jurisprudence – Statutory law creating a right in the citizen may be made or unmade by simple majority in Parliament – Fundamental rights enshrined in the Constitution are not alienable – The argument that privacy rights need not be read into Part III of constitution as it is provided in many statutes rejected. (Para 56)

       (bf) Privacy rights – “Reasonable expectation of privacy” test applied in USA – Even in the USA it has been criticized – Does not have any foundation in Articles 14, 19, 20 or 21 – Not applicable in India. (Para 57, 59, 60)

       389 U.S. 347 (1967); 525 U.S. 83, 119 S.Ct. 469; (2005) 1 SCC 496 : AIR 2005 SC 186; (1955) 1 SCR 613; (1959) Supp. (1) SCR 528; (1985) 3 SCC 545 – Referred

       (bg) Interpretation – Constitution – Constitution governs people’s lives – People’s lives keep evolving and changing with the times – So, interpretation of the Constitution should also keep pace with such changes – Resultantly Article 21 has become repository of a vast multitude of human rights – Like right to go abroad, right to legal aid, right to bail, right to live with dignity, right to earn a livelihood, right to shelter, right to speedy trial, right against sexual harassment, right to fair trial, right to sleep, right to reputation etc. – Doctrine of originalism has no place in India. (Para 62, 65, 66)

       17 U.S. 316; (2005) 2 SCC 104; (2007) 2 SCC 1; (2006) 8 SCC 212; (1978) 1 SCC 248; (1978) 4 SCC 494; (1978) 3 SCC 544; (1978) 1 SCC 579; (1980) 2 SCC 360; (1980) 3 SCC 526; (1983) 2 SCC 96; (1983) 4 SCC 141; (1985) 3 SCC 545; (1988) 4 SCC 592; (1989) Supp (1) SCC 264; (1989) 4 SCC 286; (1990) 1 SCC 520; (1991) 1 SCC 598; (1992) 1 SCC 225; (1994) 4 SCC 260; (1995) 2 SCC 577; (1995) 3 SCC 42; (1996) 5 SCC 647; (1997) 6 SCC 241; (2005) 5 SCC 733; (2006) 3 SCC 374; (2012) 5 SCC 1; (2013) 10 SCC 591; (2014) 3 SCC 1 – Relied upon

       (bh) Interpretation – Constitution – Substantial question as to interpretation of Constitution – It is the Supreme Court and Supreme Court alone to interpret the Constitution – By a minimum of 5 Judges of this Court – Article 145(3). (Para 66)

       (bi) Privacy right – Fundamental right – Aspects of privacy – Involving the person: right to move freely: Articles 19(1)(d) and (e) r/w Article 21 – Informational privacy: Article 21 – Privacy of choice; privacy over personal choices: Articles 19(1)(a) to (c), 20(3), 21 and 25 – Liberty of thought, expression, belief, faith and worship – Preamble to Constitution. (Para 73, 81, 84)

       (1994) 6 SCC 632; (1994) 6 SCC 632; (1997) 1 SCC 301; Sharda v. Dharmpal; Canara Bank – Relied upon

       277 U.S. 438; Katz; 410 U.S. 113 (1973); 388 U.S. 1; 87 S.Ct. 1817; 18 L.Ed.2d 1010 (1967); 316 U.S. 535; 62 S.Ct. 1110; 86 L.Ed. 1655 (1942); 405 U.S. 438; 92 S.Ct. 1029; 31 L.Ed.2d 349 (1972), 321 U.S. 158; 64 S.Ct. 438; 88 L.Ed. 645 (1944); 268 U.S. 510; 45 S.Ct. 571; 69 L.Ed. 1070 (1925); 565 U.S. 400 (2012); Gobind; Kharak Singh; Griswold; 429 U.S. 589; 2007 (5) SA 250 (CC) – Referred

       (bj) Constitution of India – Articles 21, 14 and 19 – Dignity – Cannot be assured without fraternity – Cannot be achieved without right to privacy – However privacy right is subject to reasonable State regulations to protect legitimate State interests or public interest. (Para 85, 86)

       (1980) 3 SCC 526; (1981) 1 SCC 608; (1984) 3 SCC 161; (2010) 3 SCC 786; (2015) 6 SCC 702; (2016) 7 SCC 761 – Relied upon

       (bk) Privacy rights – Privacy of individuals – Legislatively recognised in section 8(1)(j), Right to Information Act, 2005 and other Acts – Section 5, Indian Telegraph Act of 1885 – Section 26, Indian Post Office Act, 1898 – It is too late to undo it. (Para 88, 89)

       (2013) 16 SCC 82 – Relied upon

       (bl) Privacy right – Inalienability – Privacy right is a natural and inalienable right – Not flowing from Article 21 but reflected by it – The right inheres in every individual by virtue of his being a human being – Held, the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution. (Para 90, 91, 92, 93, 94)

       (2007) 2 SCC 1 – Relied upon

       (1976) 2 SCC 521; (1964) 1 SCR 332 : (1963) 2 Cri LJ 329 : AIR 1963 SC 1295; AIR 1954 SC 300 : 1950 SCR 1077 – Overruled

       Per Abhay Manohar Sapre, J. (Concurring)

       (bm) Constitution of India – Preamble – Every word chosen cautiously, arranged and placed in proper order – Every word has significance and proper meaning – Emphasis laid on "the Unity of the Nation" and the "Dignity of the individual" – Dignity and fraternity – Interdependent and intertwined – "Liberty”, "equality" and "fraternity" not separate entities – Have to be read in juxtaposition while dealing with rights of the citizens – Liberty cannot be divorced from equality and vice versa – Similarly, liberty and equality cannot be divorced from fraternity. (Para 6, 8, 9, 11, 12)

       (1997) 8 SCC 522 – Relied upon

       (bn) Constitution of India – Part III – Article 21 – Incorporating all natural and common law rights in Part III was not possible – Court therefore by process of judicial interpretation read those rights into Part III and expanded the rights like personal liberty – a (Para 14, 15, 18,

       AIR 1950 SC 27; (2014) 9 SCC 737 – Referred

       (bo) Interpretation – Constitution – Fundamental rights – The reach and ambit of the fundamental rights should be expanded rather than to attenuate their meaning and the content – The Preamble may be relied upon for this exercise. (Para 20)

       (1970) 1 SCC 248; (1973) 4 SCC 225 – Relied upon

       (bp) Interpretation of statute – Constitution – External aids – Foreign judgments – judgments from English Courts were of great help in the formative years – But the Constitution should be interpreted keeping in view the socio, economic and political conditions of the Indian Society, felt need of the people adjusting and adapting the principles derived from English decisions. (Para 23, 24)

       (1976) 3 SCC 259 – Relied upon

       (bq) Privacy rights – Essentially a natural right – Born with the human being and extinguish with human being. (Para 25)

       (br) Right to privacy – Not defined in law – Popularly "the right to be let alone” – Emanating from liberty and fraternity – Varies from case to case – Having multiple facets – Not absolute – Held a fundamental right. (Para 27, 28, 30, 33, 35, 36)

       (1975) 2 SCC 148; (1970) 1 SCC 248; (1978) 1 SCC 248; (1997) 1 SCC 301; (1998) 8 SCC 296; (2005) 1 SCC 496; (2013) 16 SCC 82 – Relied upon

       Per Sanjay Kishan Kaul, J. (Concurring)

       (bs) Right to privacy – Protection of information – From State as well as non-State actors – Profiling – Need for legislative intervention by State – Reliance on internet based services – Creating deeper and deeper digital footprints – Passively and actively – Storage, analysis and use of information by non-State actors needs regulation – Even State’s interception of information cannot be unregulated. (Para 12, 16, 17, 20)

       (bt) Constitution of India – Drafted to stand firm, for eternity, for generations – A framework endearing in war and in peace – For assisting supporting ‘peaceful, harmonious and orderly social living’. (Para 29, 31)

       (bu) Interpretation of statute – Constitution – Background – Doctrine of flexibility – Privacy is nothing but a form of dignity, which itself is a subset of liberty – Protection of privacy – Ned for change in law with times – Period to recognize privacy as fundamental right. (Para 40, 44, 47)

       AIR 1952 SCR 284; (1973) 4 SCC 225; (2004) 2 SCC 510; (1983) 1 SCC 228 – Relied upon

       (bv) Privacy – Protection of – Important for ensuring protection of liberty and dignity – Confidentiality – Of interest to public and of public interest – Distinction – Even truthful information needs protection from being disseminated in breach of privacy – Invasion of privacy as torts. (Para 50, 53, 57, 60)

       2004 UKHL 22; 202 F.2d 866 (2d Cir. 1953) – Referred

       (bw) Informational privacy – Information on the internet is permanent – Humans forget, but the internet does not forget and does not let humans forget – Deletion does not obliterate absolutely – Footprints remain – Emphasis on protection of child’s privacy – Right to be forgotten. (Para 64, 66, 69)

       Facts of the case:

       Nine judges of the Supreme 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.

       This case presents challenges for constitutional interpretation.

       Result: Reference answered. Right to privacy if a fundamental right.