(a) A person cannot conduct routine activities such as operating a bank account, holding an investment in mutual funds, receiving government pension, receiving scholarship, receiving food rations, operating a mobile phone without the State knowing about these activities.
(b) The State can build a profile of the individual based on the trial of authentication from which the nature of the citizen’s activity can be determined.
(c) By disabling Aadhaar the State can cause civil death of the person.
(d) By making Aadhaar compulsory for other activities such as air travel, rail travel, directorship in companies, services and benefits extended by the State Governments and Municipal Corporations, etc. there will be virtually no zone of activity left where the citizen is not under the gaze of the State. This will have a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 93 of 567 The State is pervasive, and dignity of the individual stands extinguished.
(f) This is an inversion of the accountability in the Right to Information age: instead of the State being transparent to the citizen, it is the citizen who is rendered transparent to the State. Impugned Act illegally passed as a ‘Money Bill’:
65) The Bill No. 47 of 2016 introduced in the Lok Sabha and which upon passage became the impugned Act was not a Money Bill in terms of Article 110 of the Constitution of India. Even though the object and purpose of the impugned legislation states that it is to be used for the delivery of subsidies, benefits and services, expenditure for which is incurred from the Consolidated Fund of India, the scope of the impugned Act is far beyond what is envisaged under Article 110. Inasmuch as the impugned Act has not followed the constitutional procedure mandated for the passage of a law by disguising the statute as a ‘Money Bill’, there is no valid legislative process that has been followed in this case. The legislative process being colourable and since judicial review extends wherever Part III rights are violated, the Aadhaar Act is liable to be struck down.
Procedure followed violates Articles 14 and 21 of the Constitution: Writ Petition (Civil) No. 494 of 2012 & connected matters Page 94 of 567
66) The procedure adopted by the respondents, both pre-Act and post-Act, is arbitrary and in violation of Articles 14 and 21 of the Constitution because:
(a) There is no informed consent at the time of enrolment. Individuals are not told about crucial aspects such as potential misuse of the information, the commercial value of the information, the storage of information in a centralised database, that the information supplied could be used against the individual in criminal proceedings pursuant to a court order, there is no opt- out option, the entire enrolment process is conducted by private entities without any governmental supervision, etc.
(b) UIDAI has no direct relationship with the enrolling agency which collects sensitive personal information (biometric and demographic).
(c) The data collected and uploaded in to the CIDR is not verified by any Government official designated by the UIDAI. The data collected and stored lacks integrity.
(d) The procedure at the stage of enrolment and authentication enables the enrolling agency as well as the ‘requesting entity’ to capture, store and misuse/use the biometric as well as demographic information without the UIDAI having any control Writ Petition (Civil) No. 494 of 2012 & connected matters Page 95 of 567 over such misuse/use.
Unreliability of Biometrics and Exclusion:
67) The foundation of the project, i.e. biometrics, is an unreliable and untested technology. Moreover, biometric exceptions severely erode reliability. The biometric authentication system works on a probabilistic model. Consequently, entitlements are reduced from certainty to a chance delivery where the biometrics match. Across the country several persons are losing out on their entitlements, for say food rations, because of a biometric mismatch resulting in them being excluded from various welfare schemes. The project is not an ‘identity’ project but an ‘identification’ exercise. Unless the biometrics work, a person in flesh and blood, does not exist for the State. Illegal Object:
68) It is submitted before us that the objective of creating a single pervasive identification over time is itself illegal. There are several facets to the illegality and amongst them is the very negation of an individual citizen’s freedom to identify through different means. The coercive foundation of the impugned Act is in substance an illegal objective that renders the statute ultra vires Article 14 of the Constitution of India. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 96 of 567 Democracy, Identity and Choice:
69) A citizen or resident in a democratic society has a choice to identify himself/herself through different modes in the course of his/her interactions generally in society as well as his/her interactions with the State. Mandating identification by only one highly intrusive mode is excessive, disproportionate and violates Articles 14, 19 and 21.
Children:
70) As per the petitioners, there is no justification to include children in the Aadhaar programme for various reasons.
71) It may also be recorded at this juncture itself that insofar as the Aadhaar Act is concerned, following provisions thereof are specifically attacked as unconstitutional:
(i) Section 2(c) and 2(d) - authentication and authentication record, read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23 of the Aadhaar (Enrolment and Updates) Regulation - ‘enrolling agency’
(iv) Section 2(v) - ‘resident’
(v) Section 3 – Aadhaar Number Writ Petition (Civil) No. 494 of 2012 & connected matters Page 97 of 567
(vi) Section 5 – Special treatment to children
(vii) Section 6 – Update of information
(viii) Section 7
(ix) Section 8
(x) Section 9
(xi) Chapter IV – Sections 11 to 23
(xii) Sections 23 and 54 – excessive delegation
(xiii) Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32 of the Aadhaar (Enrolment and Update) Regulations, 2016
(xiv) Section 29
(xv) Section 33 (xvi) Section 47 (xvii) Section 48 – Power of Central Government to supersede UIDAI (xviii) Section 57 (xix) Section 59 Some Introductory Remarks:
72) Before proceeding further, it would be necessary to state here the approach which we have adopted in dealing with various issues that are raised in these petitions. That may help in understanding the manner in which the matter is dealt with. This necessitates Writ Petition (Civil) No. 494 of 2012 & connected matters Page 98 of 567 some introductory remarks:
(i) We may remark at this stage itself that many of the heads of challenge which are taken note of above are overlapping and, therefore, discussion on one aspect may provide substantial answers to the arguments advanced under the other head of challenge as well. Our endeavour, therefore, would be to eschew the repetitive discussion. However, our anxiety to bring clarity and also in order to have continuity of thought while discussing a particular head, may have led to some repetitions at different places. In any case, we would be dealing with the various heads of challenge, one by one, so as to cover the entire spectrum.
(ii) In order to have a smooth flow of discussion, we are going to formulate the questions which arise in all these petitions and then decide those issues. Since, number of advocates 7 appeared on both sides, many of the arguments addressed by them were overlapping and repetitive. In this scenario, we deem it proper to collate the arguments of all the counsel and present the same while undertaking the discussion on each of the issues. Thus, in the process, we would not be referring to each counsel and her arguments. We may, however, intend to place on record that all 7 S/Shri Kapil Sibal, Gopal Subramaniam, P. Chidambaram, Shyam Divan, K.V. Viswanathan, Neeraj Kishan Kaul, C.U. Singh, Anand Grover, Sanjay R. Hegde, Arvind P. Datar, V. Giri, Rakesh Dwivedi, Jayant Bhushan, Sajan Poovayya, P.V. Surendra Nath, Senior Advocates, K.K. Venugopal, Attorney General for India, Tushar Mehta, Additional Solicitor General of India, Gopal Sankaranarayanan and Zoheb Hossain, Advocates. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 99 of 567 the counsel on both sides had taken the advocacy to its highest level by presenting all possible nuances of the complex issues involved. In the process, plethora of literature on such issues, including the law prevailing across the Globe was cited. We, therefore, place on record our appreciation of the sublime nature of lawyering in this case.
(iii) As pointed out above, many number of foreign judgments were cited during arguments. The history of this Court reflects that this Court has liberally accepted the good practices, rules of interpretation and norms of constitutional courts of other jurisdictions. In fact, in drafting Indian Constitution itself, the framing fathers had studied various foreign models and adopted provisions from different Constitutions after deep reflection. Constitutional influences of system prevailing in some of the countries on Indian Constitution can be summarised as under: From UK - Parliamentary Type of Government
- Cabinet System of Ministers
- Bicameral Parliament
- Lower House more powerful
- Council of Minsters responsible to Lower House From US - Written Constitution
- Executive head of State known as President and his being the Supreme Commander of the Armed Forces
- Vice-President as the ex-officio Chairman of Rajya Sabha
- Bill of Rights Writ Petition (Civil) No. 494 of 2012 & connected matters Page 100 of 567
- Supreme Court
- Provision of States
- Independence of Judiciary and judicial review
- Preamble
- Removal of Supreme Court and High Court Judges From USSR - Fundamental Duties
- Five Year Plan From Australia - Concurrent List
- Language of the preamble
- Provision regarding trade, commerce and intercourse From Japan - Law on which the Supreme Court function From Weimar - Suspension of Fundamental Rights during Constitution of the emergency Germany From Canada - Scheme of federation with a strong centre
- Distribution of powers between the centre and the states and placing residuary powers with the centre From Ireland - Concept of Directive Principles of States Policy
- Method of election of President
- Nomination of members in the Rajya Sabha by the President It was, therefore, but natural to find out the manner in which particular provisions have been interpreted by the constitutional courts of the aforesaid countries. Case law of this Court would reflect this for interpreting the provisions relating to ‘Inter-State Trade, Commerce & Intercourse’. The case law of the Australian High Court is liberally referred as this Chapter is influenced by the provisions contained in the Australian Constitution. Likewise, for interpreting provisions of Part IX of the Constitution on ‘Relations Writ Petition (Civil) No. 494 of 2012 & connected matters Page 101 of 567 between the Union and the States’ where Canadian model is followed, the judgments of Canadian Supreme Court have been cited by this Court from time to time. Influence of U.S. Constitutionalism, tempered by the wish to preserve India’s own characteristics, while interpreting chapter relating to fundamental rights as well as power of judicial review is also discernible. A critical analysis of the various judgments of this Court, where foreign precedents are cited8, formulates four typologies of use, namely:
(a) Where the court relies on foreign precedents for guidance on general constitutional principles and when necessary to;
(b) Where the court frames the issue posed for adjudication and/or to formulate evaluative test and frameworks;
(c) To distinguish the country’s context from the foreign one 9;
(d) To ‘read’ in the Constitution implied or unenumerated rights10.
It can be said that though this Court has been liberally relying upon the judgments of the constitutional courts of other countries, particularly when it comes to human rights discourse, at the same time, in certain situations, note of caution is also 8 Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore (2010) 9 Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr., 1959 Supp (1) SCR 528 10 Romesh Thappar v. State of Madras, 1950 SCR 594 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 102 of 567 added to give a message that the judgment of other jurisdiction cannot be relied blindly and it would depend as to whether a particular judgment will fit in Indian context or not. As a matter of fact, in Basheshar Nath, the Court discussed the doctrine of waiver in force in the United States and rejected it firmly stating that:
:...the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution...We are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of the Constitution.” On the contrary, in Romesh Thappar, the Court completely based its decision to strike down a law restricting the free circulation of newspapers on two US precedents, Ex parte Jackson11 and Lovell v. City of Griffin12, and affirmed that the protection of freedom of expression in India follows the maxim of Madison that the Court transposed from its quotation in Near v.
Minnesota13, according to which ‘it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits’. Likewise, the role of foreign precedents in a majority opinion is confirmed in the decision of His Holiness Kesavananda Bharati 11 Ex Parte Jackson, 96 US 727 (1878).
12 Lovell v. City of Griffin, 303 US 444 (1938). 13 Near v. Minnesota, 282 US 607 (1931) 717-18. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 103 of 567 Sripadagalvaru which clarifies Parliament’s power to amend the Constitution. At the same time, looking to the use of foreign precedents in this judgment, Justice S.M. Sikri (as His Lordship then was), dealing with the interpretation of Article 368 of the Constitution, first of all, highlighted that:
“No other Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions [sic], with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
After this premise, however, His Lordship accepts, in order to define what an ‘amendment’ is according to the Indian Constitution, the reasoning of Lord Greene in Bidie v. General Accident, Fire and Life Assurance Corporation 14 and that of Justice Holmes in Towne v. Eisner15, which affirm that to understand a word it is necessary to understand the context in which it is inserted. To strengthen this, James v. Commonwealth of Australia16 is also referred to.
We have stated the trend in brief with a purpose. Number of judgments of U.K. Courts, German Supreme Court, European Commission of Human Rights (ECHR), U.S. Supreme Court etc. were cited. However, there is no similarity in approach by these 14 Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995, 998. 15 Towne v. Eisner, 245 US 418.
16 James v. Commonwealth of Australia, (1936) AC 578. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 104 of 567 Courts in deciding a particular issue by applying different principles, particularly when it comes to the issues of data protection and privacy. In this backdrop, it becomes necessary, while referring to these judgments, to keep in mind the ethos, cultural background and vast socio-economic problems of this country and on that basis to accept a particular norm, or for that matter, to formulate a constitutional norm which is relevant in our context. That is the endeavour which is made by us.
(iv) Many arguments of the petitioners relate to the working of the system. The petitioners had argued that the architecture of Aadhaar, by its very nature, is probabilistic and, therefore, it may result in exclusion, in many cases. Therefore, rather than extending subsidies, benefits and services to the section of society for which these are meant, it may have the tendency to exclude them from receiving such subsidies, benefits and services. The respondents, on the other hand, have stated on affidavit that the attempt of the respondents would be to ensure that no individual who is eligible for such benefits etc. is deprived form receiving those benefits, even when in a particular case, it is found that on authentication, his fingerprints or iris are not matching and is resulting into failure. It was clarified that since Writ Petition (Civil) No. 494 of 2012 & connected matters Page 105 of 567 Aadhaar project is an ongoing project, there may be some glitches in its working and there is a continuous attempt to make improvements in order to ensure that it becomes foolproof over a period of time. We have eschewed detailed discussion in respect of those arguments, which may not have much relevance when judging the constitutional validity of the Act and the scheme. However, such arguments of exclusion etc. leading to violation of Articles 14 and 21 are dealt with at an appropriate stage. But the argument based on alleged inaccurate claims of savings by the Authority/Union of India in respect of certain programmes, like saving of USD 11 billion per annum due to the Aadhaar project, as well as savings in the implementation of the MGNREGA scheme, LPG subsidy, PDS savings need not detain us for long. Such rebuttals raised by the petitioners may have relevance insofar as working of the Act is concerned. That by itself cannot be a ground to invalidate the statute.
(v) As mentioned above, notwithstanding the passions and emotions evoked on both sides in equal measure, this Court has adopted a lambent approach while dealing with the issues raised, having a posture of calmness coupled with objective examination of the issues on the touchstone of the constitutional provisions. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 106 of 567 We are in the age of constitutional democracy, that too substantive and liberal democracy. Such a democracy is not based solely on the rule of people through their representatives which is known as “formal democracy”. It also has other precepts like rule of law, human rights, independence of judiciary, separation of powers, etc. The framers of Indian Constitution duly recognized the aforesaid precepts of liberal and substantive democracy with rule of law as an important and fundamental pillar. At the same time, in the scheme of the Constitution, it is the judiciary which is assigned the role of upholding rule of law and protecting the Constitution and democracy.
The essence of rule of law is to preclude arbitrary action. Dicey, who propounded the rule of law, gave distinct meaning to this concept and explained that it was based on three kindered features, which are as follows:
(i) absence of arbitrary powers on the part of authorities;
(ii) equality before law; and
(iii) the Constitution is part of the ordinary law of the land.
There are three aspects of the rule of law, which are as follows:
(a) A formal aspect which means making the law rule. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 107 of 567
(b) A jurisprudential or doctrinal aspect which is concerned with the minimal condition for the existence of law in society.
(c) A substantive aspect as per which the rule of law is concerned with properly balancing between the individual and society.
When we talk of jurisprudential rule of law, it includes certain minimum requirements without which a legal system cannot exist and which distinguished a legal system from an automatic system where the leader imposes his will on everyone else. Professor Lon Fuller has described these requirements collectively as the 'inner morality of law'. In addition to jurisprudential concept, which is important and an essential condition for the rule of law, the substantive concept of the rule of law is equally important and inseparable norm of the rule of law in real sense. It encompasses the 'right conception' of the rule of law propounded by Dworkin. It means guaranteeing fundamental values of morality, justice, and human rights, with a proper balance between these and the other needs of the society. Justice Aharon Barak, former Chief Justice of Israel, has lucidly explained this facet of rule of law in the following manner:
“The rule of law is not merely public order, the rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity Writ Petition (Civil) No. 494 of 2012 & connected matters Page 108 of 567 and develop himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual”. This is the rule of law that strikes a balance between society's need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. The Judge must protect this rich concept of the rule of law.” The 'rule of law', which is a fine sonorous phrase, is dynamic and ever expanding and can be put alongside the brotherhood of man, human rights and human dignity. About the modern rule of law, Professor Garner observed:
“The concept in its modern dress meets a need that has been felt throughout the history of civilization, law is not sufficient in itself and it must serve some purpose. Man is a social animal, but to live in society he has had to fashion for himself and in his own interest the law and other instruments of government, and as a consequence those must to some extent limit his personal liberties. The problem is how to control those instruments of government in accordance with the Rule of Law and in the interest of the governed.” Likewise, the basic spirit of our Constitution is to provide each and every person of the nation equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status. Granville Austin while analyzing the functioning of Indian Constitution in first 50 years has described three distinguished strands of Indian Constitution: (i) protecting national Writ Petition (Civil) No. 494 of 2012 & connected matters Page 109 of 567 unity and integrity, (ii) establishing the institution and spirit of democracy; and (iii) fostering social reforms. The strands are mutually dependent and inextricably intertwined in what he elegantly describes as a 'seamless web'. And there cannot be social reforms till it is ensured that each and every citizen of this country is able to exploit his/her potentials to the maximum. The Constitution, although drafted by the Constituent Assembly, was meant for the people of India and that is why it is given by the people to themselves as expressed in the opening words “We the People...”. What is the most important gift to the common person given by this Constitution is “fundamental rights” which may be called human rights as well.
Speaking for the vision of our founding fathers, in State of Karnataka & Anr. v. Shri Ranganatha Reddy & Anr. 17, this Court speaking through Justice Krishna Iyer observed:
“The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine, economic democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value system, and the debate in this case puts precisely this soul in peril….Our thesis is that the dialectics of social justice should not be missed if the synthesis of Parts III and Part IV is to influence State action and court pronouncements. Constitutional problems cannot be studied in a socio-economic vacuum, since socio-cultural changes are the source of the new values, and sloughing off old legal thought is part of the process the new equity-
17 (1977) 4 SCC 471 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 110 of 567 loaded legality. A judge is a social scientist in his role as constitutional invigilator and fails functionally if he forgets this dimension in his complex duties.” In Dattatraya Govind Mahajan v. State of Maharashtra18 the spirit of our Constitution was explained thus:
“Our Constitution is a tryst with destiny, preamble with lucent solemnity in the words ‘Justice – social, economic and political.’ The three great branches of Government, as creatures of the Constitution, must remember this promise in their fundamental role and forget it at their peril, for to do so will be a betrayal of chose high values and goals which this nation set for itself in its objective Resolution and whose elaborate summation appears in Part IV of the Paramount Parchment. The history of our country’s struggle for independence was the story of a battle between the forces of socio-economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation…..Once we grasp the dharma of the Constitution, the new orientation of the karma of adjudication becomes clear. Our founding fathers, aware of our social realities, forged our fighting faith and integrating justice in its social, economic and political aspects. While contemplating the meaning of the Articles of the Organic Law, the Supreme Court shall not disown Social Justice.” In National Human Rights Commission v. State of Arunachal Pradesh19, the Supreme Court explained it again, as under:
“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws.” Looking the matter from this angle, when the judiciary is assigned the role of upholding the rule of law, the first function of 18 (1977) 2 SCC 548 19 (1996) 1 SCC 742 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 111 of 567 the judiciary is to protect the democracy as well as the Constitution. At the same time, second role of the Court, which is equally important, is to bridge the gap between the law and the society. In the process of undertaking this role, a third role, which is of equal significance also springs up. Judiciary is also to ensure that social and economic justice is meted out to the deserving lot by affirmative action of the State. Our attempt has been to strive the balancing of competing Constitutional norms.
The complex issues are dealt with keeping in view this role of the Supreme Court as assigned by the Constitution; albeit within the constitutional norms.
Scope of Judicial Review:
73) The aforesaid discussion leads us to pick up and discuss another strand viz. the scope of judicial review in such matters.
74) Judicial review means the Supremacy of law. It is the power of the court to review the actions of the Legislature, the Executive and the Judiciary itself and to scrutinize the validity of any law or action. It has emerged as one of the most effective instruments of protecting and preserving the cherished freedoms in a constitutional democracy and upholding principles such as separation of powers and rule of law. The Judiciary, through Writ Petition (Civil) No. 494 of 2012 & connected matters Page 112 of 567 judicial review, prevents the decisions of other branches from impinging on the constitutional values. The fundamental nature of the Constitution is that of a limiting document, it curtails the powers of majoritarianism from hijacking the State. The power of review is the shield which is placed in the hands of the most judiciaries of constitutional democracies to enable the protection of the supreme document.
75) In Binoy Viswam v. Union of India & Ors.20, scope of judicial review of legislative Act was described in the following manner:
“76. Under the Constitution, Supreme Court as well as High Courts are vested with the power of judicial review of not only administrative acts of the executive but legislative enactments passed by the legislature as well. This power is given to the High Courts under Article 226 of the Constitution and to the Supreme Court under Article 32 as well as Article 136 of the Constitution. At the same time, the parameters on which the power of judicial review of administrative act is to be undertaken are different from the parameters on which validity of legislative enactment is to be examined. No doubt, in exercises of its power of judicial review of legislative action, the Supreme Court, or for that matter, the High Courts can declare law passed by Parliament or the State Legislature as invalid. However, the power to strike down primary legislation enacted by the Union or the State Legislatures is on limited grounds.
Courts can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution of India. No doubt, since the Supreme Court and the High Courts are treated as the ultimate arbiter in all matters involving interpretation of the Constitution, it is the courts which have the final say on questions relating to rights and whether such a right is violated or not. The basis of the aforesaid statement lies in 20 (2017) 7 SCC 59 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 113 of 567 Article 13(2) of the Constitution which proscribes the State from making “any law which takes away or abridges the right conferred by Part III”, enshrining fundamental rights. It categorically states that any law made in contravention thereof, to the extent of the contravention, be void.
77. We can also take note of Article 372 of the Constitution at this stage which applies to pre-constitutional laws. Article 372(1) reads as under:
“372. Continuance in force of existing laws and their adaptation.—(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.” In the context of judicial review of legislation, this provision gives an indication that all laws enforced prior to the commencement of the Constitution can be tested for compliance with the provisions of the Constitution by courts. Such a power is recognised by this Court in Union of India v. SICOM Ltd. In that judgment, it was also held that since the term “laws”, as per Article 372, includes common law the power of judicial review of legislation, which is a part of common law applicable in India before the Constitution came into force, would continue to vest in the Indian courts.
78. …These contours of the judicial review are spelled out in the clear terms in Rakesh Kohli, and particularly in the following paragraphs: (SCC pp. 321-22 & 325-27, paras 16-17, 26-28 & 30) “16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 114 of 567
17. This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and
(ii) that it does not (sic) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. In McDowell and Co. while dealing with the challenge to an enactment based on Article 14, this Court stated in para 43 of the Report as follows: (SCC pp. 737-38) ‘43. … A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. … if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to
(g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.’ xx xx xx
26. In Mohd. Hanif Quareshi, the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in para 15 of the Report as under: (AIR pp. 740-41) Writ Petition (Civil) No. 494 of 2012 & connected matters Page 115 of 567 ‘15. … The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.’
27. The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi.
28. In Hamdard Dawakhana v. Union of India, inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. and Mahant Moti Das, it was observed in para 8 of the Report as follows: (Hamdard Dawakhana case, AIR p. 559) ‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy….’ In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India and State of Bombay v. F.N. Balsara and reiterated the principle that presumption was always in favour of constitutionality of an enactment. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 116 of 567
xx xx xx
30. A well-known principle that in the field of taxation, the legislature enjoys a greater latitude for classification, has been noted by this Court in a long line of cases. Some of these decisions are Steelworth Ltd. v. State of Assam [Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589], Gopal Narain v. State of U.P. [Gopal Narain v. State of U.P., AIR 1964 SC 370], Ganga Sugar Corpn. Ltd. v. State of U.P. [Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90], R.K. Garg v. Union of India [R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and State of W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A. India Ltd., (2003) 5 SCC 239]” (emphasis in original) xx xx xx
83. It is, thus, clear that in exercise of power of judicial review, the Indian courts are invested with powers to strike down primary legislation enacted by Parliament or the State Legislatures. However, while undertaking this exercise of judicial review, the same is to be done at three levels. In the first stage, the Court would examine as to whether impugned provision in a legislation is compatible with the fundamental rights or the constitutional provisions (substantive judicial review) or it falls foul of the federal distribution of powers (procedural judicial review). If it is not found to be so, no further exercise is needed as challenge would fail. On the other hand, if it is found that legislature lacks competence as the subject legislated was not within the powers assigned in the List in Schedule VII, no further enquiry is needed and such a law is to be declared as ultra vires the Constitution. However, while undertaking substantive judicial review, if it is found that the impugned provision appears to be violative of fundamental rights or other constitutional rights, the Court reaches the second stage of review. At this second phase of enquiry, the Court is supposed to undertake the exercise as to whether the impugned provision can still be saved by reading it down so as to bring it in conformity with the constitutional provisions. If that is not achievable then the enquiry enters the third stage. If the offending portion of the statute is severable, it is severed and the Court strikes down the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 117 of 567 impugned provision declaring the same as unconstitutional.”
76) In support of the aforesaid proposition that an Act of the Parliament can be invalidated only on the aforesaid two grounds, passages from various judgments were extracted 21. The Court also noted the observations from State of A.P. & Ors. v. MCDOWELL & Co. & Ors.22 wherein it was held that apart from the aforesaid two grounds, no third ground is available to validate any piece of legislation. In the process, it was further noted that in Rajbala & Ors. v. State of Haryana & Ors.23 (which followed MCDOWELL & Co. case), the Court held that a legislation cannot be declared unconstitutional on the ground that it is ‘arbitrary’ inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and courts do not examine the wisdom of legislative choices, and, therefore, cannot undertake this exercise.
77) The issue whether law can be declared unconstitutional on the ground of arbitrariness has received the attention of this Court in a Constitution Bench judgment in the case of Shayara Bano v. Union of India & Ors.24. R.F. Nariman and U.U. Lalit, JJ. 21 State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 22 (1996) 3 SCC 709 23 (2016) 2 SCC 445 24 (2017) 9 SCC 1 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 118 of 567 discredited the ratio of the aforesaid judgments wherein the Court had held that a law cannot be declared unconstitutional on the ground that it is arbitrary. The Judges pointed out the larger Bench judgment in the case of Dr. K.R. Lakshmanan v. State of T.N. & Anr.25 and Maneka Gandhi v. Union of India & Anr.26 where ‘manifest arbitrariness’ is recognised as the third ground on which the legislative Act can be invalidated. Following discussion in this behalf is worthy of note:
“87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.
88. We only need to point out that even after McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] , this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v.
State of Maharashtra [Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1] , this Court held that after passage of time, a law can become arbitrary, and, 25 (1996) 2 SCC 226 26 (1978) 1 SCC 248 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 119 of 567 therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paras 8 to 15 and 31).
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99. However, in State of Bihar v. Bihar Distillery Ltd. [State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para 22, in State of M.P. v. Rakesh Kohli [State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], SCC at paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445], SCC at paras 53 to 65 and in Binoy Viswam v. Union of India [Binoy Viswam v. Union of India, (2017) 7 SCC 59], SCC at paras 80 to 82, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] are, therefore, no longer good law.”
78) The historical development of the doctrine of arbitrariness has been noticed by the said Judges in Shayara Bano in detail. It would be suffice to reproduce paragraphs 67 to 69 of the said judgment as the discussion in these paras provide a sufficient guide as to how a doctrine of arbitrariness is to be applied while adjudging the constitutional validity of a legislation.
“67. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage, Bhagwati, J., in E.P. Royappa v. State of T.N. stated: (SCC p. 38, para 85) Writ Petition (Civil) No. 494 of 2012 & connected matters Page 120 of 567 “85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all- embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous Writ Petition (Civil) No. 494 of 2012 & connected matters Page 121 of 567 or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.” (emphasis supplied)
68. This was further fleshed out in Maneka Gandhi v. Union of India, where, after stating that various fundamental rights must be read together and must overlap and fertilise each other, Bhagwati, J., further amplified this doctrine as follows: (SCC pp. 283-84, para 7) “The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of T.N. , namely, that: (SCC p. 38, para 85) ‘85. … From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….’ Writ Petition (Civil) No. 494 of 2012 & connected matters Page 122 of 567 Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. 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.” (emphasis supplied)
69. This was further clarified in A.L. Kalra v. Project and Equipment Corpn., following Royappa and holding that arbitrariness is a doctrine distinct from discrimination. It was held: (A.L. Kalra case, SCC p. 328, para 19) “19. … It thus appears well settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed in Ajay Hasia case and put the matter beyond controversy when it said: (SCC p. 741, para 16) ‘16. … Wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action.’ This view was further elaborated and affirmed in D.S. Nakara v. Union of India . In Maneka Gandhi v. Union of India it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14.” Writ Petition (Civil) No. 494 of 2012 & connected matters Page 123 of 567 The same view was reiterated in Babita Prasad v. State of Bihar , SCC at p. 285, para 31.” This doctrine is, thus, treated as a facet of both Articles 14 and 21 of the Constitution.
79) We would like to record that we have proceeded on the premise that manifest arbitrariness also furnishes a ground on the basis on which a legislative enactment can be judicially reviewed. In the process, even the constitutional validity of Section 139AA of the Income Tax Act, 1961 is given a fresh look on the touchstone of this norm.
Explaining the doctrine/principles on which the cases are to be decided:
80) Our discussion up to this stage, which gives a glimpse of the attack to the Aadhaar scheme and the Aadhaar Act, spearheaded by the petitioners, would reveal that in the forefront is the right to privacy and that forms the main pillar on which the edifice of arguments is substantially constructed 27. Inbuilt in this right to privacy is the right to live with dignity, which is a postulate of right to privacy. In the process, discussion leads to the issue of proportionality, viz. whether measures taken under the Aadhaar Act satisfy the doctrine of proportionality. We would, therefore, 27 There are few other incidental and ancillary issues raised by the petitioners as well, which we propose to discuss and deal with after answering these fundamental submissions. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 124 of 567 be well advised to explain these concepts, so that their application to the fact situation is undertaken with clear and stable norms in mind.
Contours of Right to Privacy:
81) It stands established, with conclusive determination of the nine Judge Bench judgment of this Court in K.S. Puttaswamy that right to privacy is a fundamental right. The majority judgment authored by Dr. D.Y. Chandrachud, J. (on behalf of three other Judges) and five concurring judgments of other five Judges have declared, in no uncertain terms and most authoritatively, right to privacy to be a fundamental right. This judgment also discusses in detail the scope and ambit of right to privacy. The relevant passages in this behalf have been reproduced above while taking note of the submissions of the learned counsel for the petitioners as well as respondents. One interesting phenomenon that is discerned from the respective submissions on either side is that both sides have placed strong reliance on different passages from this very judgment to support their respective stances. A close reading of this judgment brings about the following features:
(i) Privacy has always been a natural right: The correct position in this behalf has been established by a number of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 125 of 567 judgments starting from Gobind v. State of M.P.28 Various opinions conclude that:
(a) privacy is a concomitant of the right of the individual to exercise control over his or her personality.
(b) Privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III.
(c) The fundamental right to privacy would cover at least three aspects – (i) intrusion with an individual’s physical body, (ii) informational privacy, and (iii) privacy of choice.
(d) One aspect of privacy is the right to control the dissemination of personal information. And that every individual should have a right to be able to control exercise over his/her own life and image as portrayed in the world and to control commercial use of his/her identity.
Following passages from different opinions reflect the aforesaid proposition:
Dr. D.Y. Chandrachud, J.:
42. 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 Lockehad in his Second Treatise of Government observed that the lives, liberties and estates of individuals 28 (1975) 2 SCC 148 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 126 of 567 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 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.
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46. 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.
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318. Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.
S.A. Bobde, J. :
415. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us. R.F. Nariman, J. :
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 127 of 567
521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects:
Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;
Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and The privacy of choice, which protects an individual's autonomy over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; ground personal information privacy under Article 21; and the privacy of choice in Articles 19(1)(a) to
(c), 20(3), 21 and 25. The argument based on “privacy” being a vague and nebulous concept need not, therefore, detain us.
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532. The learned counsel for the petitioners also referred to another important aspect of the right to privacy. According to the learned counsel for the petitioner this right is a natural law right which is inalienable. Indeed, the reference order itself, in para 12, refers to this aspect of the fundamental right contained. It was, therefore, argued before us that given the international conventions referred to hereinabove and the fact that this right inheres in every individual by virtue of his being a human being, such right is not conferred by the Constitution but is only recognised and given the status of being fundamental. There is no doubt that the petitioners are correct in this submission. However, one important roadblock in the way needs to be got over.
533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution Bench of this Court arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those Writ Petition (Civil) No. 494 of 2012 & connected matters Page 128 of 567 rights altogether. A remarkable dissent was that of Khanna, J. [ Khanna, J. was in line to be Chief Justice of India but was superseded because of this dissenting judgment. Nani Palkhivala in an article written on this great Judge's supersession ended with a poignant sentence, “To the stature of such a man, the Chief Justiceship of India can add nothing.” Seervai, in his monumental treatise Constitutional Law of India had this to say:“53. If in this Appendix the dissenting judgment of Khanna, J. has not been considered in detail, it is not for lack of admiration for the judgment, or the courage which he showed in delivering it regardless of the cost and consequences to himself. It cost him the Chief Justiceship of India, but it gained for him universal esteem not only for his courage but also for his inflexible judicial independence. If his judgment is not considered in detail it is because under the theory of precedents which we have adopted, a dissenting judgment, however valuable, does not lay down the law and the object of a critical examination of the majority judgments in this Appendix was to show that those judgments are untenable in law, productive of grave public mischief and ought to be overruled at the earliest opportunity. The conclusion which Justice Khanna has reached on the effect of the suspension of Article 21 is correct. His reminder that the rule of law did not merely mean giving effect to an enacted law was timely, and was reinforced by his reference to the mass murders of millions of Jews in Nazi concentration camps under an enacted law. However, the legal analysis in this Chapter confirms his conclusion though on different grounds from those which he has given.” (at Appendix p. 2229).] The learned Judge held: (SCC pp. 747 & 751, paras 525 & 531) “525. The effect of the suspension of the right to move any court for the enforcement of the right conferred by Article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that article for obtaining relief from the court during the period of emergency. Question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still survives during the period of emergency despite the Presidential Order suspending the right to move any court for the enforcement of the right contained in Article 21. The answer to this question is linked with the answer to the question as Writ Petition (Civil) No. 494 of 2012 & connected matters Page 129 of 567 to whether Article 21 is the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, 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 among their inalienable rights are life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process, of law. The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity of life and liberty. They have also given expression in varying words to the principle that no one shall be derived of his life or liberty without the authority of law. The International Commission of Jurists, which is affiliated to UNESCO, has been attempting with, considerable success to give material content to “the rule of law”, an expression used in the Universal Declaration of Human Rights. One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers. “Respect for the supreme value of human personality” was stated to be the basis of all law (see p. 21 of the Constitutional and Administrative Law by O. Hood Phillips, 3rd Edn.).
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531. I am unable to subscribe to the view that when right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant Writ Petition (Civil) No. 494 of 2012 & connected matters Page 130 of 567 violation of the provisions of law. The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the Framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan case [A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88] , such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. 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 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. I am also unable to agree that in view of the Presidential Order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coming into force of the Constitution.” (emphasis in original) S.K. Kaul, J.:
574. I have had the benefit of reading the exhaustive and erudite opinions of Rohinton F. Nariman and Dr D.Y. Chandrachud, JJ. The conclusion is the same, answering the reference that privacy is not just a common law right, but a fundamental right falling in Part III of the Constitution of India. I agree with this conclusion as privacy is a primal, natural right which is inherent to an individual. However, I am tempted to set out my perspective on the issue of privacy as a right, which to my mind, is an important core of any individual existence.
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620. I had earlier adverted to an aspect of privacy — the right to control dissemination of personal information. The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations. Privacy assists in preventing awkward social situations and reducing social frictions. Most of the information about individuals can fall under the phrase “none of your business”. On information being shared voluntarily, the same may be said to be in confidence and any breach of confidentiality is a breach of the trust. This is more so in the professional relationships such as with doctors and lawyers which requires an element of candour in disclosure of information. An individual has the right to control one's life while submitting personal data for various facilities and services. It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it. The hallmark of freedom in a democracy is having the autonomy and control over our lives which becomes impossible, if important decisions are made in secret without our awareness or participation. [ Daniel Solove, “10 Reasons Why Privacy Matters” published on 20-1-2014 <https://www.teachprivacy.com/10-reasons-
privacy-matters/>.] xx xx xx
625. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent. [ The Second Circuit's decision in Haelan Laboratories Inc. v. Topps Chewing Gum Inc., 202 F 2d 866 (2d Cir 1953) penned by Jerome Frank, J. defined the right to publicity as “the right to grant the exclusive privilege of publishing his picture”.]” xx xx xx
646. If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology. In an era where there are Writ Petition (Civil) No. 494 of 2012 & connected matters Page 132 of 567 wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognised as a fundamental right. How it thereafter works out in its inter- play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognise this important, natural, primordial right as a fundamental right.”
(ii) 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 intrusions. While the legitimate expectation of privacy may vary from intimate zone to the private zone and from the private to the public arena, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Further, privacy is a postulate of dignity itself. Also, privacy concerns arise when the State seeks to intrude into the body and the mind of the citizen. This aspect is discussed in the following manner:
Dr. D.Y. Chandrachud, J. :
127. 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 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 133 of 567 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 fulfill the 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.
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297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development Writ Petition (Civil) No. 494 of 2012 & connected matters Page 134 of 567 of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
xx xx xx
322. Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy subserves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.
323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 135 of 567 S.A. Bobde, J. :
407. Undoubtedly, privacy exists, as the foregoing demonstrates, as a verifiable fact in all civilised societies. But privacy does not stop at being merely a descriptive claim. It also embodies a normative one. The normative case for privacy is intuitively simple. Nature has clothed man, amongst other things, with dignity and liberty so that he may be free to do what he will consistent with the freedom of another and to develop his faculties to the fullest measure necessary to live in happiness and peace. The Constitution, through its Part III, enumerates many of these freedoms and their corresponding rights as fundamental rights. Privacy is an essential condition for the exercise of most of these freedoms. Ex facie, every right which is integral to the constitutional rights to dignity, life, personal liberty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental right.
408. Though he did not use the name of “privacy”, it is clear that it is what J.S. Mill took to be indispensable to the existence of the general reservoir of liberty that democracies are expected to reserve to their citizens. In the introduction to his seminal On Liberty (1859), he characterised freedom in the following way:
“This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character;
of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 136 of 567 each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.
No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of Government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions of personal, as of social excellence.” [John Stuart Mill, On Liberty and Other Essays (Stefan Collini Edition, 1989) (1859)] (emphasis supplied)
409. The first and natural home for a right to privacy is in Article 21 at the very heart of “personal liberty” and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilised people. Privacy is thus one of those rights “instrumentally required if one is to enjoy” [ Laurence H. Tribe and Michael C. Dorf, “Levels of Generality in the Definition of Rights”, 57 U CHI L REV 1057 (1990) at p. 1068.] rights specified and enumerated in the constitutional text.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 137 of 567
410. This Court has endorsed the view that “life” must mean “something more than mere animal existence” [Munn v. Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877) (Per Field, J.) as cited in Kharak Singh, (1964) 1 SCR 332 at pp. 347-48] on a number of occasions, beginning with the Constitution Bench in Sunil Batra (1) v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] connected this view of Article 21 to the constitutional value of dignity. In numerous cases, including Francis Coralie Mullin v. UT of Delhi [Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212] , this Court has viewed liberty as closely linked to dignity. Their relationship to the effect of taking into the protection of “life” the protection of “faculties of thinking and feeling”, and of temporary and permanent impairments to those faculties. In Francis Coralie Mullin[Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212] , Bhagwati, J. opined as follows: (SCC p. 618, para 7) “7. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of U.P. [Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332], Subba Rao, J.
quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois [Munn v. Illinois, 1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877)] to emphasise the quality of life covered by Article 21: (Kharak Singh case [Kharak Singh v. State of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] , AIR p. 1301, para
15)
15. … “By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world.” ’ Writ Petition (Civil) No. 494 of 2012 & connected matters Page 138 of 567 and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155]. Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiori, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.” (emphasis supplied) Privacy is, therefore, necessary in both its mental and physical aspects as an enabler of guaranteed freedoms.
411. It is difficult to see how dignity—whose constitutional significance is acknowledged both by the Preamble and by this Court in its exposition of Article 21, among other rights —can be assured to the individual without privacy. Both dignity and privacy are intimately intertwined and are natural conditions for the birth and death of individuals, and for many significant events in life between these events. Necessarily, then, the right to privacy is an integral part of both “life” and “personal liberty” under Article 21, and is intended to enable the rights bearer to develop her potential to the fullest extent made possible only in consonance with the constitutional values expressed in the Preamble as well as across Part III.
R.F. Nariman, J:
525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual. [ In 1834, Jacques-Charles Dupont de l'Eure associated the three terms liberty, equality and fraternity together in the Revue Républicaine, which he edited, as follows:“Any man aspires to liberty, to equality, but he cannot achieve it Writ Petition (Civil) No. 494 of 2012 & connected matters Page 139 of 567 without the assistance of other men, without fraternity.”Many of our decisions recognise human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at para 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at para 37.] The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information. It is clear that Article 21, more than any of the other articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right to privacy, which has so many developing facets, can only be developed on a case-to-case basis. Depending upon the particular facet that is relied upon, either Article 21 by itself or in conjunction with other fundamental rights would get attracted.
S.K. Kaul, J. :
618. Rohinton F. Nariman, and Dr D.Y. Chandrachud, JJ., have emphasised the importance of the protection of privacy to ensure protection of liberty and dignity. I agree with them and seek to refer to some legal observations in this regard:
618.1. In Robertson and Nicol on Media Law [ Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law, 5th Edn., p. 265.] it was observed:
“Individuals have a psychological need to preserve an intrusion-free zone for their personality and family and suffer anguish and stress when that zone is violated. Democratic societies must protect privacy as part of their facilitation of individual freedom, and offer some legal support for the individual choice as to what Writ Petition (Civil) No. 494 of 2012 & connected matters Page 140 of 567 aspects of intimate personal life the citizen is prepared to share with others. This freedom in other words springs from the same source as freedom of expression: a liberty that enhances individual life in a democratic community.” 618.2. Lord Nicholls and Lord Hoffmann in their opinion in Naomi Campbell case[Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2 WLR 1232 : (2004) UKHL 22 (HL)] recognised the importance of the protection of privacy. Lord Hoffman opined as under: (AC p. 472 H & 473 A-D, paras 50-51) “50. What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by private persons which would not be available to the state — I have particularly in mind the position of the media, to which I shall return in a moment — but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other Judges who have considered the matter.
51. The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. … Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity — the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.” 618.3. Lord Nicholls opined as under: (Naomi Campbell case [Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2 WLR 1232 : (2004) UKHL 22 (HL)] , AC p. 464 D-F, para
12) Writ Petition (Civil) No. 494 of 2012 & connected matters Page 141 of 567 “12. The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. The case involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J. in R. v. Dyment [R. v. Dyment, 1988 SCC OnLine Can SC 86 : (1988) 2 SCR 417] , SCC OnLine Can SC para 17 : SCR p.
426.”
619. Privacy is also the key to freedom of thought. A person has a right to think. The thoughts are sometimes translated into speech but confined to the person to whom it is made. For example, one may want to criticise someone but not share the criticism with the world.
Chelameswar, J.:
372. History abounds with examples of attempts by Governments to shape the minds of subjects. In other words, conditioning the thought process by prescribing what to read or not to read; what forms of art alone are required to be appreciated leading to the conditioning of beliefs; interfering with the choice of people regarding the kind of literature, music or art which an individual would prefer to enjoy. [Stanleyv. Georgia, 1969 SCC OnLine US SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969)“3. … that the mere private possession of obscene matter cannot constitutionally be made a crime.***9. … State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving Government the power to control men's minds.” (SCC OnLine US SC paras 3 & 9)] Such conditioning is sought to be achieved by screening the source of information or prescribing penalties for making choices which Governments do not approve. [Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615] Insofar as religious beliefs are concerned, a good deal of the misery our species suffer Writ Petition (Civil) No. 494 of 2012 & connected matters Page 142 of 567 owes its existence to and centres around competing claims of the right to propagate religion. Constitution of India protects the liberty of all subjects guaranteeing [“25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”] the freedom of conscience and right to freely profess, practice and propagate religion. While the right to freely “profess, practice and propagate religion” may be a facet of free speech guaranteed under Article 19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty. There are areas other than religious beliefs which form part of the individual's freedom of conscience such as political belief, etc. which form part of the liberty under Article 21.
373. Concerns of privacy arise when the State seeks to intrude into the body of subjects. [Skinner v. Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)“20. There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority—even those who have been guilty of what the majority defines as crimes.” (SCC OnLine US SC para 20)—Jackson, J.] Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced feeding of certain persons by the State raises concerns of privacy. An individual's rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right to Writ Petition (Civil) No. 494 of 2012 & connected matters Page 143 of 567 privacy. I am conscious of the fact that the issue is pending before this Court. But in various other jurisdictions, there is a huge debate on those issues though it is still a grey area. [ For the legal debate in this area in US, See Chapter 15.11 of American Constitutional Law by Laurence H. Tribe, 2nd Edn.] A woman's freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy. Similarly, the freedom to choose either to work or not and the freedom to choose the nature of the work are areas of private decision-making process. The right to travel freely within the country or go abroad is an area falling within the right to privacy. The text of our Constitution recognised the freedom to travel throughout the country under Article 19(1)(d). This Court has already recognised that such a right takes within its sweep the right to travel abroad. [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] A person's freedom to choose the place of his residence once again is a part of his right to privacy [Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900)—“8. Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty….” (SCC OnLine US SC para 8)] recognised by the Constitution of India under Article 19(1)(e) though the predominant purpose of enumerating the abovementioned two freedoms in Article 19(1) is to disable both the federal and State Governments from creating barriers which are incompatible with the federal nature of our country and its Constitution. The choice of appearance and apparel are also aspects of the right to privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right to privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Article 25. Informational traces are also an area which is the subject-matter of huge debate in various jurisdictions falling within the realm of the right to privacy, such data is as personal as that of the choice of appearance and apparel. Telephone tappings and internet hacking by State, of personal data is another area which falls within the realm of privacy. The instant reference arises out of such an attempt by the Union of India to collect biometric data regarding all the residents of this country. The abovementioned are some of the areas where some interest of privacy exists. The examples given above Writ Petition (Civil) No. 494 of 2012 & connected matters Page 144 of 567 indicate to some extent the nature and scope of the right to privacy.
374. I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life. Freedom of social and political association is guaranteed to citizens under Article 19(1)(c). Personal association is still a doubtful area. [The High Court of A.P. held that Article 19(1)
(c) would take within its sweep the matrimonial association in T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP 90 : AIR 1983 AP 356. However, this case was later overruled by this Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 : AIR 1984 SC 1562.] The decision-making process regarding the freedom of association, freedoms of travel and residence are purely private and fall within the realm of the right to privacy. It is one of the most intimate decisions.
375. All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State's interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.
376. I am in complete agreement with the conclusions recorded by my learned Brothers in this regard.”
(iii) Privacy is intrinsic to freedom, liberty and dignity: The right to privacy is inherent to the liberties guaranteed by Part-III of the Constitution and privacy is an element of human dignity. The fundamental right to privacy derives from Part-III of the Constitution and recognition of this right does not require a Writ Petition (Civil) No. 494 of 2012 & connected matters Page 145 of 567 constitutional amendment. Privacy is more than merely a derivative constitutional right. It is the necessary basis of rights guaranteed in the text of the Constitution. Discussion in this behalf is captured in the following passages:
Dr. D.Y. Chandrachud, J. :
127. 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 fulfill the 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.
S.A. Bobde, J. :
416. There is nothing unusual in the judicial enumeration of one right on the basis of another under the Constitution. In Writ Petition (Civil) No. 494 of 2012 & connected matters Page 146 of 567 the case of Article 21's guarantee of “personal liberty”, this practice is only natural if Salmond's formulation of liberty as “incipient rights” [ P.J. Fitzgerald, Salmond on Jurisprudence at p. 228.] is correct. By the process of enumeration, constitutional courts merely give a name and specify the core of guarantees already present in the residue of constitutional liberty. Over time, the Supreme Court has been able to imply by its interpretative process that several fundamental rights including the right to privacy emerge out of expressly stated fundamental rights. In Unni Krishnan, J.P. v. State of A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645] , a Constitution Bench of this Court held that “several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude” [Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 at p. 669, para 29] on the way to affirming the existence of a right to education. It went on to supply the following indicative list of such rights, which included the right to privacy: (SCC pp. 669-70, para 30) “30. The following rights are held to be covered under Article 21:
1. The right to go abroad. Satwant Singh v. D. Ramarathnam [Satwant Singh Sawhney v. D.
Ramarathnam, (1967) 3 SCR 525 : AIR 1967 SC 1836] .
2. The right to privacy. Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] In this case reliance was placed on the American decision in Griswold v. Connecticut [Griswold v. Connecticut, 1965 SCC OnLine US SC 124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479 (1965)] , US at p. 510.
3. The right against solitary confinement. Sunil Batra (1) v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC at p. 545.
4. The right against bar fetters. Charles Sobhraj v. Supt., Central Jail [Charles Sobraj v. Supt., Central Jail, (1978) 4 SCC 104 : 1978 SCC (Cri) 542].
5. The right to legal aid. M.H. Hoskot v. State of Maharashtra [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468].
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 147 of 567
6. The right to speedy trial. Hussainara Khatoon (1) v. State of Bihar[Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23] .
7. The right against handcuffing. Prem Shankar v. Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815]
8. The right against delayed execution. T.V. Vatheeswaran v. State of T.N. [T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri) 342]
9. The right against custodial violence. Sheela Barse v. State of Maharashtra [Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353].
10. The right against public hanging. Attorney General of India v. Lachma Devi [Attorney General of India v. Lachma Devi, 1989 Supp (1) SCC 264 : 1989 SCC (Cri) 413].
11. Doctor's assistance. Paramananda Katara v. Union of India [Parmanand Katara v. Union of India, (1989) 4 SCC 286 : 1989 SCC (Cri) 721].
12. Shelter. Santistar Builders v. Narayan Khimalal Totame [Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 SCC 520] .” In the case of privacy, the case for judicial enumeration is especially strong. It is no doubt a fair implication from Article 21, but also more. Privacy is a right or condition, “logically presupposed” [ Laurence H. Tribe And Michael C. Dorf, “Levels Of Generality in the Definition of Rights”, 57 U CHI L REV 1057 (1990) at p. 1068.] by rights expressly recorded in the constitutional text, if they are to make sense. As a result, privacy is more than merely a derivative constitutional right. It is the necessary and unavoidable logical entailment of rights guaranteed in the text of the Constitution.
R.F. Nariman, J:
482. Shri Sundaram has argued that rights have to be traced directly to those expressly stated in the fundamental rights chapter of the Constitution for such rights to receive Writ Petition (Civil) No. 494 of 2012 & connected matters Page 148 of 567 protection, and privacy is not one of them. It will be noticed that the dignity of the individual is a cardinal value, which is expressed in the Preamble to the Constitution. Such dignity is not expressly stated as a right in the fundamental rights chapter, but has been read into the right to life and personal liberty. The right to live with dignity is expressly read into Article 21 by the judgment in Jolly George Varghesev. Bank of Cochin [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360] , at para 10. Similarly, the right against bar fetters and handcuffing being integral to an individual's dignity was read into Article 21 by the judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , at paras 192, 197-B, 234 and 241 and Prem Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815] , at paras 21 and 22. It is too late in the day to canvas that a fundamental right must be traceable to express language in Part III of the Constitution. As will be pointed out later in this judgment, a Constitution has to be read in such a way that words deliver up principles that are to be followed and if this is kept in mind, it is clear that the concept of privacy is contained not merely in personal liberty, but also in the dignity of the individual.”
(iv) 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.
Dr. D.Y. Chandrachud, J.:
326. 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.” Writ Petition (Civil) No. 494 of 2012 & connected matters Page 149 of 567
(v) Informational Privacy is a facet of right to privacy: The old adage that ‘knowledge is power’ has stark implications for the position of individual where data is ubiquitous, an all- encompassing presence. Every transaction of an individual user leaves electronic tracks without her knowledge. Individually these information silos may seem inconsequential. In aggregation, information provides a picture of the beings. The challenges which big data poses to privacy emanate from both State and non-State entities. This proposition is described in the following manner:
Dr. D.Y. Chandrachud, J.:
300. Ours is an age of information. Information is knowledge. The old adage that “knowledge is power” has stark implications for the position of the individual where data is ubiquitous, an all-encompassing presence. Technology has made life fundamentally interconnected. The internet has become all-pervasive as individuals spend more and more time online each day of their lives. Individuals connect with others and use the internet as a means of communication. The internet is used to carry on business and to buy goods and services. Individuals browse the web in search of information, to send e-mails, use instant messaging services and to download movies. Online purchases have become an efficient substitute for the daily visit to the neighbouring store. Online banking has redefined relationships between bankers and customers. Online trading has created a new platform for the market in securities. Online music has refashioned the radio. Online books have opened up a new universe for the bibliophile. The old-fashioned travel agent has been rendered redundant by web portals which provide everything from restaurants to rest houses, airline tickets to art galleries, museum tickets to music shows. These are but a few of the reasons people access the internet each day of their lives.Writ Petition (Civil) No. 494 of 2012 & connected matters Page 150 of 567
Yet every transaction of an individual user and every site that she visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain powerful means of information which provide knowledge of the sort of person that the user is and her interests [See Francois Nawrot, Katarzyna Syska and Przemyslaw Switalski, “Horizontal Application of Fundamental Rights — Right to Privacy on the Internet”, 9th Annual European Constitutionalism Seminar (May 2010), University of Warsaw, available at <http://en.zpc.wpia.uw.edu.pl/wp- content/uploads/2010/04/9_Horizontal_Application_of_Fun damental_Rights.pdf>.] . Individually, these information silos may seem inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation. In aggregation, information provides a picture of the being: of things which matter and those that do not, of things to be disclosed and those best hidden.
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304. Data mining processes together with knowledge discovery can be combined to create facts about individuals. Metadata and the internet of things have the ability to redefine human existence in ways which are yet fully to be perceived. This, as Christina Moniodis states in her illuminating article, results in the creation of new knowledge about individuals; something which even she or he did not possess. This poses serious issues for the Court. In an age of rapidly evolving technology it is impossible for a Judge to conceive of all the possible uses of information or its consequences:
“… The creation of new knowledge complicates data privacy law as it involves information the individual did not possess and could not disclose, knowingly or otherwise. In addition, as our State becomes an “information State” through increasing reliance on information—such that information is described as the “lifeblood that sustains political, social, and business decisions. It becomes impossible to conceptualize all of the possible uses of information and resulting harms. Such a situation poses a challenge for courts who are effectively asked to anticipate and remedy invisible, evolving harms.” [ Christina P. Moniodis, “Moving from Nixon to NASA: Privacy's Second Writ Petition (Civil) No. 494 of 2012 & connected matters Page 151 of 567 Strand — A Right to Informational Privacy”, Yale Journal of Law and Technology (2012), Vol. 15 (1), at p. 154.] The contemporary age has been aptly regarded as “an era of ubiquitous dataveillance, or the systematic monitoring of citizen's communications or actions through the use of information technology” [Yvonne McDermott, “Conceptualizing the Right to Data Protection in an Era of Big Data”, Big Data and Society (2017), at p. 1.] . It is also an age of “big data” or the collection of data sets. These data sets are capable of being searched; they have linkages with other data sets; and are marked by their exhaustive scope and the permanency of collection. [Id, at pp. 1 and 4.] The challenges which big data poses to privacy interests emanate from State and non-State entities. Users of wearable devices and social media networks may not conceive of themselves as having volunteered data but their activities of use and engagement result in the generation of vast amounts of data about individual lifestyles, choices and preferences. Yvonne McDermott speaks about the quantified self in eloquent terms:
“… The rise in the so-called ‘quantified self’, or the self-tracking of biological, environmental, physical, or behavioural information through tracking devices, Internet-of-things devices, social network data and other means (?Swan.2013) may result in information being gathered not just about the individual user, but about people around them as well. Thus, a solely consent-based model does not entirely ensure the protection of one's data, especially when data collected for one purpose can be repurposed for another.” [Id, at p. 4.] xx xx xx
328. 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 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 152 of 567 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.
S.K. Kaul, J.:
585. The growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing. Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable. Edward Snowden shocked the world with his disclosures about global surveillance. States are utilising technology in the most imaginative ways particularly in view of increasing global terrorist attacks and heightened public safety concerns. One such technique being adopted by the States is “profiling”. The European Union Regulation of 2016 [ Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4- 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] on data privacy defines “profiling” as any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements [ Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] . Such profiling can result in discrimination based on religion, ethnicity and caste. However, “profiling” can also be used to further public interest and for the benefit of national security.
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586. The security environment, not only in our country, but throughout the world makes the safety of persons and the State a matter to be balanced against this right to privacy.
587. The capacity of non-State actors to invade the home and privacy has also been enhanced. Technological development has facilitated journalism that is more intrusive than ever before.
588. Further, in this digital age, individuals are constantly generating valuable data which can be used by non-State actors to track their moves, choices and preferences. Data is generated not just by active sharing of information, but also passively, with every click on the “world wide web”. We are stated to be creating an equal amount of information every other day, as humanity created from the beginning of recorded history to the year 2003 — enabled by the “world wide web”. [ Michael L. Rustad, SannaKulevska, “Reconceptualizing the right to be forgotten to enable transatlantic data flow”, (2015) 28 Harv JL & Tech 349.]
589. Recently, it was pointed out that “ “Uber”, the world's largest taxi company, owns no vehicles. “Facebook”, the world's most popular media owner, creates no content. “Alibaba”, the most valuable retailer, has no inventory. And “Airbnb”, the world's largest accommodation provider, owns no real estate. Something interesting is happening.” [ Tom Goodwin “The Battle is for Customer Interface”, <https://techcrunch.com/2015/03/03/in-the-age-of- disintermediation-the-battle-is-all-for-the-customer- interface/>.] “Uber” knows our whereabouts and the places we frequent. “Facebook” at the least, knows who we are friends with. “Alibaba” knows our shopping habits. “Airbnb” knows where we are travelling to. Social network providers, search engines, e-mail service providers, messaging applications are all further examples of non-State actors that have extensive knowledge of our movements, financial transactions, conversations — both personal and professional, health, mental state, interest, travel locations, fares and shopping habits. As we move towards becoming a digital economy and increase our reliance on internet- based services, we are creating deeper and deeper digital footprints — passively and actively.
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590. These digital footprints and extensive data can be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions and hence, is valuable information. This is the age of “big data”. The advancement in technology has created not just new forms of data, but also new methods of analysing the data and has led to the discovery of new uses for data. The algorithms are more effective and the computational power has magnified exponentially. A large number of people would like to keep such search history private, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising. Of course, “big data” can also be used to further public interest. There may be cases where collection and processing of big data is legitimate and proportionate, despite being invasive of privacy otherwise.
591. Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision-making processes and shaping behaviour. It can be used as a tool to exercise control over us like the “big brother” State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford.
592. Thus, there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-State actors. There is also a need for protection of such information from the State. Our Government was successful in compelling Blackberry to give to it the ability to intercept data sent over Blackberry devices. While such interception may be desirable and permissible in order to ensure national security, it cannot be unregulated. [ Kadhim Shubber, “Blackberry gives Indian Government ability to intercept messages” published by Wired on 11-7-2013 <http://www.wired.co.uk/article/blackberry-india>.]
593. The concept of “invasion of privacy” is not the early conventional thought process of “poking ones nose in another person's affairs”. It is not so simplistic. In today's world, privacy is a limit on the Government's power as well as the power of private sector entities. [ Daniel Solove, “10 Reasons Why Privacy Matters” published on 20-1-2014 <https://www.teachprivacy.com/10-reasons-privacy- matters/>.] Writ Petition (Civil) No. 494 of 2012 & connected matters Page 155 of 567
594. George Orwell created a fictional State in Nineteen Eighty-Four. Today, it can be a reality. The technological development today can enable not only the State, but also big corporations and private entities to be the “big brother”.
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629. The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet. Needless to say that this would not be an absolute right. The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the nth extent for all and sundry to know.
630. A high school teacher was fired after posting on her Facebook page that she was “so not looking forward to another [school] year” since the school district's residents were “arrogant and snobby”. A flight attendant was fired for posting suggestive photos of herself in the company's uniform. [ Patricia Sánchez Abril, “Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee”, 49 Am Bus LJ 63 at p. 69 (2012).] In the pre- digital era, such incidents would have never occurred. People could then make mistakes and embarrass themselves, with the comfort that the information will be typically forgotten over time.
631. The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle [ Ravi Antani, “ THE RESISTANCE OF MEMORY : COULD THE EUROPEAN UNION'S RIGHT TO BE FORGOTTEN EXIST IN THE UNITED STATES?”, 30 Berkeley Tech LJ 1173 (2015).] .
632. The technology results almost in a sort of a permanent storage in some way or the other making it difficult to begin life again giving up past mistakes. People are not static, they change and grow through their lives. They evolve. They make mistakes. But they are entitled to re-invent themselves and reform and correct their Writ Petition (Civil) No. 494 of 2012 & connected matters Page 156 of 567 mistakes. It is privacy which nurtures this ability and removes the shackles of unadvisable things which may have been done in the past.
633. Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their “ABCs”: Apple, Bluetooth and chat followed by download, e-mail, Facebook, Google, Hotmail and Instagram. [ Michael L. Rustad, SannaKulevska, “Reconceptualizing the right to be forgotten to enable transatlantic data flow”, (2015) 28 Harv JL & Tech 349.] They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.
634. People change and an individual should be able to determine the path of his life and not be stuck only on a path of which he/she treaded initially. An individual should have the capacity to change his/her beliefs and evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated with them and thus refrain from expressing themselves.
635. Whereas this right to control dissemination of personal information in the physical and virtual space should not amount to a right of total eraser of history, this right, as a part of the larger right to privacy, has to be balanced against other fundamental rights like the freedom of expression, or freedom of media, fundamental to a democratic society.
636. Thus, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right Writ Petition (Civil) No. 494 of 2012 & connected matters Page 157 of 567 cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”
(vi) Right to privacy cannot be impinged without a just, fair and reasonable law: It has to fulfill the test of proportionality i.e. (i) existence of a law; (ii) must serve a legitimate State aim; and (iii) proportionality.
“Dr. D.Y. Chandrachud, J. :