In continuation of our previous article on the “Hashing of the Privacy Judgement” we can now look at the six pieces of individual judgement and the end notes in each of these judgement s that can be considered as “Judgmental Conclusions not forming part of the final order”. This is the second level of the 547 page judgement that we can try to explore.
Before penning down these end-notes, the judges who authored their respective parts of the judgement have presented pages and pages of observations basically recollecting the earlier judgements. Technologists should appreciate the huge efforts involved in “Cutting and Pasting” from volumes of judgements from the early part of the last century to the current days not only in the honourable Supreme Court but also other Courts as well.
Many of these judgements were from other qualified Judges mostly by smaller benches or subordinate Courts. Hence the current consolidation represents an over riding of earlier contrarian opinions and brings the development of Jurisprudence on Privacy Rights in India to a mile-stone stage.
In particular, two judgements namely M.P Sharma (1954) and Karakh Singh (1964) judgements were declared as over ridden. the first – M P Sharma v Satish Chandra, District Magistrate, Delhi1 was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh was rendered by a Bench of six judges. These decisions, contained observations that the Indian Constitution does not specifically protect the right to privacy. They were based on the principles expounded in A.K.Gopalan Vs State of Madras (1950) which construed each provision contained in the Chapter on fundamental rights as embodying a distinct protection. This principle had already been over turned by an 11 member bench in Rustom Cavasji Cooper v Union of India.(1970)(Popularly known as the Bank Nationalization Case).
Hence part of this 9 member bench in this case which can be referred to as the Puttaswamy case was only reiterating that M P Sharma and Kharak Singh Judgements had already been over ridden in the Cooper judgement if we had not realized it. Since Cooper Judgement was a 11 member bench, there was no way this 9 member bench could over turn it. Had the CJI wanted it to be over turned, he would not have constituted a 9 member bench at all. Hence it was known from the beginning that M P Sharma and Kharak Singh judgements were out of contention and Cooper was in.
The consequence of the Cooper decision according to the Chandrachud (Part I) part of the judgement is that a law which restricts the personal liberties contained in Article 19 (Freedom of Expression) must meet the test of permissible restrictions contemplated by Clauses 2 to 6 in relation to the fundamental freedom which is infringed.
These restrictions are stated as follows:
Nothing in sub clause (a) of clause ( 1 ) namely that All citizens shall have the right to freedom of speech and expression; shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence… etc
In this background, we can now concatenated all the end notes in the Six parts of the judgement as follows.
Part-I (Chandrachud, Kehar, Agarwal, Nazeer) : Conclusions:
1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.
2 Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.
3
(A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty;
(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;
(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and (I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy would be read subject to the above principles.
5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment.
Justice Chelmeshwar has not recorded any separate para as “Conclusions”. Hence his conclusion is contained in the final order only. He has generally agreed with the conclusions arrived at Part I.
a. The ineluctable conclusion must be that an inalienable constitutional right to privacy inheres in Part III of the Constitution. M.P. Sharma and the majority opinion in Kharak Singh must stand overruled to the extent that they indicate to the contrary.
b. The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails
c. Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.
This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India.
M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary stand overruled.
The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited.
These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us.
Justice Sapre also has not captioned any paragraph as a “Conclusion” but has identified two specific points of reference and went ahead to give his views there on.
They are
(1) whether the law laid down in the case of M.P.Sharma and others vs. Satish Chandra, District Magistrate Delhi & Ors., AIR 1954 SC 300 and Kharak Singh vs. State of Uttar Pradesh & Ors. AIR 1963 SC 1295 insofar as it relates to the “right to privacy of an individual” is correct and
(2) whether “right to privacy” is a fundamental right under Part III of the Constitution of India?
His views are
1) I entirely agree with their reasoning and the conclusion on question No. 1 (given by others)
2) ..my answer to question No. 2 is that “right to privacy” is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law….I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.
Justice Kaul has also not specifically noted any “Conclusion” but has made a few important observations.
I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.
Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.
If we observe all these concluding remarks together, the majority opinion which is “Unanimous” is that “Privacy is a Fundamental Right subject to Resalable Restrictions”.
There are many other observations buried inside the pages of this judgement which could be quoted in other litigations in due course as ” views of a Judge in the famous Puttaswamy case”. These will however be “Observations not forming either individual judgements or the Final Order” and will be seen as the third level of what this judgement implies.
Observations which are not part of the final order or individual conclusions may have a limited practical judicial value since they have been deliberately omitted in the conclusions or the final order.
Other observations such as the one on LGBT rights etc are not majority opinions and not also part of the order. Aadhaar has not been specifically commented upon since another bench is anyway looking into it.
Now, the next question that we need to discuss is what will be the take home for the stake holders on account of this Puttaswamy judgement?
Judges are happy about the excellent media coverage that they have got because of this judgement. They have got as much TRP as the media channels. Constitutional experts who practice in High Courts/Supreme Courts are happy that there could be a number of cases they can file directly at the High Courts and Supreme Courts and enjoy locking up our judicial system in a plethora of litigations. Academicians will be happy with the bundle of case laws that can be discussed and re-discussed in class rooms and conferences. It is a Win-Win-Win situation for all.
But at the end of this short term celebration, we need to examine the impact of this judgement on the real stake holders of “Privacy” which we shall explore in subsequent article.
There are three different stake holders to this “Privacy Issue” namely
a) The Citizen of the Country who should feel that he has a “Right to Privacy” in whatever manner the Constitution understands it.
b) The Government which makes laws and uses services such as Aadhaar which may have an indirect association with the principle of “Privacy”
c) The business entities which use services that have a direct and indirect association with the principle of “Privacy”.
Let’s continue our debate…after a break…because we may have some thing more in the interim to discuss on Infosys Saga….
Naavi