Judges: J.S. Khehar, C.J.I., Jasti Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, Dr. D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer, JJ.

Facts:

The debate over whether privacy is a fundamental right first surfaced in 2015 before a three-judge Supreme Court bench that was debating the constitutionality of the Aadhaar system. Therein, the Attorney General agreed that the 'right to privacy' had been recognised by the Supreme Court in a number of decisions. However, he claimed that Part III of the Constitution did not protect this fundamental right because larger Supreme Court benches in the M.P. Sharma (8-judge bench) and Kharak Singh (6-judge bench) cases refused to agree that the right to privacy was guaranteed by the Constitution.

In its order dated 11 August 2015, the Supreme Court observed that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy.

Consequently, in order to guarantee 'institutional integrity and judicial discipline', the matter was referred to a five-judge bench.

However, on 18 July 2017, the said Constitution Bench presided over by the learned Chief Justice considered it appropriate that the issue be resolved by a Bench of nine judges, which resulted in present judgment.

Issues:

(i) Whether there is any fundamental right of privacy under the Constitution?

(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) What are the doctrinal foundations of the claim to privacy? 

(iv) What is the content of privacy?

(v) What is the nature of the regulatory power of the state?

Laws:

Constitution - Article 21 - It reads, "no person shall be deprived of his life or personal liberty except according to a procedure established by law".

Two rights are guaranteed under Article 21, the 'right to life' and the 'right to personal liberty'. It forbids the taking away of the aforementioned rights except in accordance with the procedure established by law.

Article 21 of the Constitution defines 'life' as more than only breathing. It does not imply continual toil or a life of simple animal existence. It covers a far larger range of issues, such as the right to a decent standard of living, the right to a means of support, the right to health, the right to clean air, and now the 'right to privacy' as well.

Contentions:

Petitioner

According to Article 21 of the Constitution and as a component of the freedoms granted by Part III of the Constitution, the right to privacy is inextricably linked to the 'right to life and personal liberty' and shall be preserved by the Constitution.

It is necessary to re-evaluate whether the rulings in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. MANU/SC/0018/1954 and Kharak Singh vs. State of U.P. and Ors. MANU/SC/0085/1962 were justified since they infringe on the right to privacy guaranteed by Article 21 of the constitution.

The tenets outlined in A.K. Gopalan vs. The State of Madras MANU/SC/0012/1950 served as the foundation for both M.P. Sharma and Kharak Singh.

In Rustom Cavasjee Cooper vs. Union of India (UOI) MANU/SC/0011/1970, an eleven judge bench ruled that A.K. Gopalan, which interpreted each clause in the Chapter on Fundamental Rights as constituting a separate protection, was not sound law. Therefore, foundations of rulings in both M.P. Sharma and Kharak Singh were invalid.

The Preamble of the Constitution must be followed, and it is important to remember that privacy is both a natural right and an international human right.

Respondent

The right to privacy is not explicitly protected by the Constitution, hence it is not a constitutionally protected fundamental right.

The cases of M. P. Sharma and Kharak Singh did not include any application of Article 21 of the Constitution, which protects the right to life and personal liberty.

The right to privacy was not intended to be a fundamental right, hence a limited perspective that emphasises the Constitution as the repository of basic rights and the Parliament as the sole entity with the authority to amend them must be embraced.

Only a statute, duly passed and enacted by the Parliament or the common law rights could definitively define the nebulous idea of privacy rights.

Analysis:

Right of privacy and fundamental rights under the Constitution

(i) Right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.

(ii) Chandrachud J., observed that in India, privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.

(iii) 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 of the Constitution.

(iv) Chandrachud J., observed that '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.

(v) Chelameswar, J., observed that 'right to privacy' consists of three facets i.e. 'repose', 'sanctuary' and 'intimate decision'. Each of these facets is so essential for the liberty of human beings, that the 'right to privacy' is part of the liberty guaranteed by our Constitution.

(vi) Bobde J., observed that 'privacy' is an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement, the 'innate dignity' and 'autonomy of man'. Therefore, regardless of whether it is a legal or common law right, it must be raised to the status of a fundamental right and given constitutional protection.

Existing guarantees of protected rights and character of right to privacy

(i) Privacy has been held to be an intrinsic element of the right to life and personal liberty under Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution.

(ii) Like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.

(iii) 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.

Doctrinal foundations of the claim to privacy

(i) Privacy is the constitutional core of human dignity.

(ii) Chandrachud J., observed that '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.Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.

(iii) 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.

(iv) 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.

(v) Chandrachud J., observed that the doctrinal foundation essentially rests upon the trilogy of M.P. Sharma-Kharak Singh-Gobind (Gobind v. State of M.P. MANU/SC/0119/1975). Subsequent decisions including those in R. Rajagopal and Anr vs. State of Tamil Nadu and Others MANU/SC/0056/1995, PUCL v. Union of India, MANU/SC/0149/1997, District Registrar and Collector, Hyderabad v. Canara Bank MANU/SC/0935/2004, Smt. Selvi and Ors. vs. State of Karnataka MANU/SC/0325/2010 and National Legal Services Authority v. Union of India MANU/SC/0309/2014 have contributed.

(vi) The decision in M.P. Sharma did not adjudicated upon whether privacy could be a constitutionally protected right under any other provision such as Articles 21 or 19 of the Constitution.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.

(vii) 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'. 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.

Contents of privacy

(i) Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other.

(ii) The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset.

(iii) All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space.

(iv) Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life.

(v) Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood.

(vi) Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of 'personal liberty' and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the Constitution.

Bobde J., observed that privacy requires the ability to be left alone and to protect oneself from all kinds of invasions. Every person has a right to be in a relaxed condition. Privacy is frequently the fundamental precondition required to exercise personal liberty, demonstrating the close connection between liberty and privacy.

(vii) In the Indian context, a fundamental right to privacy would cover at least the following three aspects -

1. Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;
2. Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and
3. The privacy of choice, which protects an individual's autonomy over fundamental personal choices.

(viii) On the question of embarking upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy, the Court ruled that 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.

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.

Nature of the regulatory power of the state

(i) Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action.

(ii) Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination.

(iv) When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity.

(v) The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. It also connotes a right to be left alone.

(vi) Chandrachud J., further observed that the similar to other rights in Part III of the Constitution, privacy is not an absolute right. Any breach of it must take into account legitimate State interests in addition to the standard of due process and legal procedure. 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.

In the context of Article 21 of the Constitution 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 of the Constitution.

An invasion of life or personal liberty must meet the three-fold requirement of -

1. legality, which postulates the existence of law;
2. need, defined in terms of a legitimate state aim; and
3. proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

(vii) Chandrachud J., observed that 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.

(viii) Chelameswar, J., also observed that only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard Under Article 21 of the Constitution will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases.

(ix) Bobde J., observed that we can only evaluate how the right to privacy affects the state's whole range of powers once we accept that it is a fundamental right. There is no justification for assuming that a privacy right is an unalienable right that cannot be lawfully curtailed. By using the freedoms guaranteed to them by the Constitution, people can exercise their right to privacy while expressly including or excluding particular people or entities from the performance of that freedom. As a result, privacy also includes the negative autonomy of not acting in a certain way.

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.

(x) 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. The Court, therefore, commended to the Union Government the need to examine and put into place a robust regime for data protection.

The Court cautioned that 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.

Conclusion:

(i) An inalienable constitutional right to privacy inheres in Part III of the Constitution.

(ii) M.P. Sharma and the majority opinion in Kharak Singh were overruled to the extent that they indicate to the contrary.

(iii) 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.

(iv) It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails.

(v) 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.

Important Precedents:

(i) M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. MANU/SC/0018/1954

(ii) Kharak Singh vs. The State of U.P. and Ors. MANU/SC/0085/1962 

(iii) A.K. Gopalan vs. The State of Madras MANU/SC/0012/1950 

(iv) R. Rajagopal v. State of Tamil Nadu, MANU/SC/0056/1995 

(v) PUCL v. Union of India, MANU/SC/0149/1997

(vi) Mrs. Maneka Gandhi vs. Union of India (UOI) and Anr. MANU/SC/0133/1978

(vii) Gobind vs. State of Madhya Pradesh and Anr. MANU/SC/0119/1975

(viii) R. Rajagopal alias R.R. Gopal and Another vs. State of Tamil Nadu and Others MANU/SC/0056/1995

(ix)People's Union of Civil Liberties (PUCL) vs. Union of India

(x) Smt. Selvi and Ors. vs. State of Karnataka MANU/SC/0325/2010