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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 37 OF 2015

IN THE MATTER OF:

Mxxx Txxxxxs …Petitioner
Versus
Union of India & Ors … Respondents

WRITTEN SUBMISSIONS OF MR. xxxx SUBRAMANIUM

1. It is submitted that the decisions in M.P. Sharma & Ors. v. Satish Chandra & Ors. [1954 SCR 1077] and Kharak Singh v. State of U.P. & Ors. [1964 1 SCR 332], to the extent they interpret fundamental rights on a distinctive basis (as recognized in A.K. Gopalan v. State of Madras [1950 SCR 88]) are no longer good law. In view of the fact that A.K. Gopalan’s case stands overruled in R.C. Cooper v. Union of India [(1970) 1 SCC 248], it follows a fortiori that neither of the above decisions are effective.

2. It is submitted that the ratio of the judgment in M.P. Sharma (Supra) merely observed that there is no right to privacy located in Article 20(3) of the Constitution; it did not extinguish a general right to privacy. This arose in the context of searches in a criminal investigation and whether the same amounted to a violation of the right in Article 20(3). Thus, it cannot be said that the decision in M.P. Sharma (Supra) is an authority for the proposition that there is no fundamental right to privacy in the Constitution. The observations in M. P.2 Sharma (Supra) being relied upon by the Respondents must be read in the context in which they were made:

“17. … A power of search and seizure is in any
system of jurisprudence an overriding power of
the State for the protection of social security and
that power is necessarily regulated by law. When
the Constitution makers have thought fit not to
subject such regulation to constitutional
limitations by recognition of a fundamental right
to privacy, analogous to the Fourth Amendment,
we have no justification to import it, into a
totally different fundamental right, by some
process of strained construction. Nor is it
legitimate to assume that the constitutional
protection under Article 20(3) would be
defeated by the statutory provisions for
searches. It is to be remembered that searches of
the kind we are concerned with are under the
authority of a Magistrate (excepting in the
limited class of cases falling under Section 165
of the Criminal Procedure Code). Therefore,
issue of a search warrant is normally the judicial
function of the Magistrate. When such judicial
function is interposed between the individual
and the officer’s authority for search, no
circumvention thereby of the fundamental right
is to be assumed. We are not unaware that in the
present set up of the Magistracy in this country,
it is not infrequently that the exercise of this
judicial function is liable to serious error, as is
alleged in the present case. But the existence of
scope for such occasional error is no ground to
assume circumvention of the constitutional
guarantee.”

3. The dissenting Judgment of Subba Rao J. in Kharak Singh (Supra) states clearly that:-

a. The question was, in the absence of any law, what was the fundamental right of the Petitioner that was infringed?

b. Clauses (a) to (f) of Regulation 236 contained in Chapter 22 of the UP Police Regulations were measures adopted for the purpose of supervision or close observation of his movements and therefore parts of surveillance. The third question was whether such a surveillance infringed any of the Petitioner’s fundamental rights.

c. Even though fundamental rights may be distinct, they
could yet be overlapping. The fundamental right of life
and personal liberties have many attributes and some of
them are part of Article 19.
d. If an action violated Article 19(1) of the Constitution, it
could be argued that there was a law to sustain that action
“but that cannot be a complete answer unless the said law
satisfies the test laid down in Article 19(2) so far as the
attributes covered by Article 19(1) are concerned”.
e. The expression ‘life’ in Article 21 meant more than mere
‘animal existence’. The expression ‘liberty’ is given a very
wide meaning in the USA. It takes in all the freedoms.
f. In A. K. Gopalan (supra), liberty was described to mean
liberty concerning the person or body of the individual.
Subba Rao, J. observed that the right to personal liberty
takes in not only a right to be free from restrictions placed
on his movement but also free from encroachments on his
private life. He further continues to say that while it is
true that our Constitution does not expressly declare
right to privacy as a fundamental right, but the said right
is an essential ingredient of personal liberty. Every
democratic country sanctifies domestic life; it is expected
to give him/her rest, physical happiness, peace of mind
and security. In the last resort a person’s house where he lives with his family is ‘his castle’. He observed:4

“28…. Indeed, nothing is more deleterious to a
man’s physical happiness and health than a
calculated interference with his privacy. We
would, therefore, define the right of personal
liberty in Article 21 as a right of an individual to
be free from restrictions or encroachments on
his person, whether those restrictions or
encroachments are directly imposed or
indirectly brought about by calculated
measures. It so understood, all the acts of
surveillance under Regulation 236 infringe the
fundamental right of the petitioner under
Article 21 of the Constitution.”
4. In fact, in some sense Subba Rao, J. also noticed that privacy
was a facet of Article 19(1)(d).
“29…. The freedom of movement in clause (d)
therefore must be a movement in a free country
i.e. in a country where he can do whatever he
likes, speak to whomsoever he wants, meet
people of his own choice without any
apprehension, subject of course to the law of
social control. The petitioner under the shadow
of surveillance is certainly deprived of this
freedom. He can move physically, but he cannot
do so freely, for all his activities are watched and
noted. The shroud of surveillance cast upon him
perforce engender inhibitions in him and he
cannot act freely as he would like to do. We
would, therefore, hold that the entire Regulation
236 offends also Article 19(1)(d) of the
Constitution”

  1. AK Gopalan (Supra) proceeded both on the distinctiveness of
    each of the fundamental rights; that ‘procedure established by
    law’ under Article 21 was not used approximately to mean
    ‘due process of law’ as interpreted by the Supreme Court of
    the United States. In A.K. Gopalan (Supra) , it was held that:
    “17. In my opinion, this line of approach is not
    proper and indeed is misleading. As regards the
    American Constitution its general structure is
    noticed in these words in The Government of the
    United States by Munro (5th Edn.) at p. 53: “The
    architects of 1787 built only the basement. Their5
    descendants have kept adding walls and
    windows, wings and gables, pillars and porches
    to make a rambling structure which is not yet
    finished. Or, to change the metaphor, it has a
    fabric which, to use the words of James Russell
    Lowell, is still being ‘woven on the roaring loom
    of time’. That is what the framers of the original
    Constitution intended it to be. Never was it in
    their mind to work out a final scheme for the
    Government of the country and stereotype it for
    all time. They sought merely to provide a
    starting point”. The same aspect is emphasized
    in Professor Willis’s book on Constitutional Law
    and Cooley’s Constitutional Limitations. In
    contrast to the American Constitution, the
    Indian Constitution is a very detailed one. The
    Constitution itself provides in minute details the
    legislative powers of Parliament and the State
    Legislatures. The same feature is noticeable in
    the case of the judiciary, finance, trade,
    commerce and services. It is thus quite detailed
    and the whole of it has to be read with the same
    sanctity, without giving undue weight to Part III
    or Article 246, except to the extent one is
    legitimately and clearly limited by the other.”
  2. The Court held that Article 19(1)(d) was distinct of personal liberty under Article 21 and the freedom to move freely in Article 19(1)(d) was not a facet of Article 21 and since a detention was duly authorized under the impugned law, the requirement of reasonableness for examining such action under Article 19(1)(d) did not arise. Further, the contention to correlate Articles 19 and 21 was rejected.

  3. It may be noted in fairness that in A. K. Gopalan (Supra) the
    following words occur in para 122, which contain footprints of
    future evolution:
    “122. There can be no doubt that the people of
    India have, in exercise of their sovereign will as
    expressed in the preamble, adopted the
    democratic ideal which assures to the citizen
    the dignity of the individual and other6
    cherished human values as a means to the full
    evolution and expression of his personality,
    and in delegating to the legislature, the
    executive and the judiciary their respective
    powers in the Constitution, reserved to
    themselves certain fundamental rights, so
    called, I apprehend, because they have been
    retained by the people and made paramount to
    the delegated powers, as in the American
    model. Madison (who played a prominent part
    in framing the First Amendment of the
    American Constitution) pointing out the
    distinction, due to historical reasons, between
    the American and the British ways of securing
    “the great and essential rights of the people”,
    observed “Here they are secured not by laws
    paramount to prerogative but by Constitutions
    paramount to laws:” Report on the Virginia
    Resolutions, quoted in Near v. Minnesota [283
    US 697] . This has been translated into positive
    law in Part III of the Indian Constitution, and I
    agree that in construing these provisions the
    high purpose and spirit of the preamble as well
    as the constitutional significance of a
    declaration of fundamental rights should be
    borne in mind. This, however, is not to say that
    the language of the provisions should be
    stretched to square with this or that
    constitutional theory in disregard of the
    cardinal rule of interpretation of any
    enactment, constitutional or other, that its
    spirit, no less than its intendment should be
    collected primarily from the natural meaning
    of the words used.”
    (emphasis supplied)

  4. It is submitted however that although the Learned Judges in A. K. Gopalan (Supra) understood the values of the Preamble of the Constitution to be relevant, yet they were constrained to hold that the fundamental rights were distinctive in character. The interpretation was informed by formalism.

  5. In R.C. Cooper (Supra), it is respectfully submitted that the
    issues relating to interrelation between the diverse provisions
    affording the guarantee of fundamental rights in Part III fell7
    to be determined. A reference was made to the decision in A.K.
    Gopalan (Supra). This Hon’ble Court held in para 45 as under:
    “45. Early in the history of this Court the
    question of inter-relation between the diverse
    provisions affording the guarantee of
    fundamental rights in Part III fell to be
    determined. In A.K. Gopalan v. State of Madras
    [(1950) SCR 88] a person detained pursuant to
    an order made in exercise of the power
    conferred by the Preventive Detention Act, 4 of
    1950 applied to this Court for a writ of habeas
    corpus claiming that the Act contravened the
    guarantee under Articles 19, 21 and 22 of the
    Constitution. The majority of the Court (Kania,
    C.J., and Patanjali Sastri, Mahajan, Mukherjea
    and Das, JJ.), held that Article 22 being a
    complete code relating to preventive detention,
    the validity of an order of detention must be
    determined strictly according to the terms and
    “within the four corners of that Article”. They
    held that a person detained may not claim that
    the freedom guaranteed under Article 19(1)(d)
    was infringed by his detention, and that validity
    of the law providing for making orders of
    detention will not be tested in the light of the
    reasonableness of the restrictions imposed
    thereby on the freedom of movement, nor on the
    ground that his right to personal liberty is
    infringed otherwise than acceding to the
    procedure established by law. Fazl Ali, J.,
    expressed a contrary view. This case has formed
    the nucleus of the theory that the protection of
    the guarantee of a fundamental freedom must be
    adjudged in the light of the object of State action
    in relation to the individual’s right and not upon
    its influence upon the guarantee of the
    fundamental freedom, and as a corollary
    thereto, that the freedoms under Articles 19, 21,
    22 and 31 are exclusive — each article enacting
    a code relating to protection of distinct rights.”

  6. In particular, Shah J. analysed how each one of the learned judges referred to an examination of legislation ‘to be directly in respect of one of the rights mentioned in the sub-clauses’. In fact the observation of Sastri J. that the fundamental or personal freedoms rested only in Article 19 while Articles 20 to 22 secure Constitutional guarantees was also noticed. The view of Mahajan J. that Article 22 was self-contained in
    respect of the laws on the subject of preventive detention was noticed. Similarly, the observation of Mukherjea J. that there was no conflict between Article 19(1)(d) and Article 22 because the former did not contemplate freedom from detention either punitive or preventive but speaks of a different aspect of civil liberties. In the view of Mukherjea J.,
    Articles 20 to 22 provided for the entire protection both in relation to deprivation of life and personal liberty with regard to substantive as well as procedural law. (See para 46, R.C. Cooper (Supra))

  7. It is respectfully submitted that Shah, J. enunciated the
    theory of ‘direct effect upon individual freedom’. It was held:
    “49. We have carefully considered the weighty
    pronouncements of the eminent Judges who
    gave shape to the concept that the extent of
    protection of important guarantees, such as the
    liberty of person, and right to property, depends
    upon the form and object of the State action, and
    not upon its direct operation upon the
    individual’s freedom. But it is not the object of
    the authority making the law impairing the right
    of a citizen, nor the form of action taken that
    determines the protection he can claim: it is the
    effect of the law and of the action upon the right
    which attracts the jurisdiction of the Court to
    grant relief. If this be the true view and we think
    it is, in determining the impact of State action
    upon constitutional guarantees which are
    fundamental, it follows that the extent of
    protection against impairment of a fundamental
    right is determined not by the object of the
    Legislature nor by the form of the action, but by
    its direct operation upon the individual’s rights.9

  8. We are of the view that the theory that the
    object and form of the State action determine the
    extent of protection which the aggrieved party
    may claim is not consistent with the
    constitutional scheme. Each freedom has
    different dimensions or facets. ….”.
    (emphasis supplied)

  9. Thus, A.K. Gopalan (Supra) was overruled by R.C. Cooper (Supra) in the following words:
    “55. …. In our judgment, the assumption in A.K.
    Gopalan case that certain articles in the
    Constitution exclusively deal with specific
    matters and in determining whether there is
    infringement of the individual’s guaranteed
    rights, the object and the form of the State action
    alone need be considered, and effect of the laws
    on fundamental rights of the individuals in
    general will be ignored cannot be accepted as
    correct.”

  10. It is respectfully submitted in the light of the above, the majority opinion in Kharak Singh (Supra) delivered by Rajagopala Ayyangar, J. has proceeded upon the basis that
    express constitutional guarantee like the Fourth Amendment being absent. Hence, it was not possible to read in Article 19(1)(d) any such right of privacy since the right to privacy
    in the US was derived from the Fourth Amendment (set out below):

“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated; and no warrants shall issue but upon
probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.”

  1. Hence, Rajagopala Ayyangar, J. fell back on the theory of
    common law to hold that the common law embodied in a
    binding principle transcends mere protection of property
    rights and expounds a concept of personal liberty. It may also
    be noted that to the extent Rajagopala Ayyangar, J (i.e. majority) held that:

“We feel unable to hold that the term [personal
liberty] was intended to bear only this narrow
interpretation but on the other hand consider
that “‘personal liberty” is used in the Article as a
compendious term to include within itself all the
varieties of rights which go to make up the
“personal liberties” of man other than those deal
with in the several clauses of Art. 19 (1).”
15. Hence, the majority held that Article 21 could not in any event
influence Article 19(1)(d). The majority further held that:
“The right of privacy is not a guaranteed right
under our Constitution, and therefore the
attempt to ascertain the movements of an
individual is merely a manner in which privacy
is invaded and is not an infringement of a
fundamental right guaranteed in Part III…”
(emphasis supplied)

  1. According to the judgment of Subba Rao, J. the following consequences will emerge:

(a) The expression liberty is not a residuary expression.
(b) It is a substantive expression;
(c) It contemplates right to privacy;
(d) If it is to be read as informed by Preambular values of
dignity, liberty and freedom – which expressions are contained in the Preamble. There can be no manner of doubt that right to privacy is an established fundamental right
under the Constitution.

  1. It is respectfully submitted that in Gobind v. State of Madhya Pradesh (1975) 2 SCC 148 at 154, the Court noticed the decision of Griswold v. Connecticut, 381 U.S. 479 at 510 and noted that:

“In an opinion by Douglas, J., expressing view of
five members of the Court, it was held that the
statute was invalid as an unconstitutional
invasion of the right of privacy of married
persons. He said that the right of freedom of
speech press includes not only the right to utter
or to print but also the right to distribute, the
right to receive, the right to read and that
without those peripheral rights the specific right
would be less secure and that likewise, the other
specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those
guarantees that help give them life and
substance, that the various guarantees create
zones of privacy, and that protection against all
governmental invasion “of the sanctity of a
man’s home and the privacies of life” was
fundamental. He further said that the inquiry is
whether a right involved “is of such a character
that it cannot be denied without violating those
‘fundamental principles of liberty and justice
which lie at the base of all our civil and political
institutions’ and that ‘privacy is a fundamental
personal right, emanating from the totality of
the Constitutional scheme under which we
(Americans) live’.””
(emphasis supplied)

  1. This Hon’ble Court also noticed the decision of Jane Roe v. Henry Wade 410 U.S. 113 where the litigant wanted exercise the right to abortion and the Court recognized “that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution”.
  • The judgment in Gobind (Supra) clearly noticed that right to privacy contained multiple aspects, such as: (See para 21 to 25, Gobind (Supra))

  • a. Spatial privacy;
    b. Informational privacy;
    c. Decisional autonomy; and,
    d. Full development of personality;
    20. It may be said that in Gobind (Supra) Mathew J. realized that
    the law relating to privacy was still in a state of evolution
    which is why he clearly noted that:
    “…28. The right to privacy in any event will
    necessarily have to go through a process of caseby-case development.”
    21. Mathew J. referred to Art. 8(1) & (2) of the Convention for
    the Protection of Human Rights and Fundamental Freedoms.
    Hence, the regulations authorizing surveillance were
    necessarily read down.

    1. It is submitted that in Maneka Gandhi v. Union of India (1978) 1 SCC 248 , the issue was fully settled. It was clearly held that:

    (a) A.K. Gopalan (Supra) stands overruled by R.C.
    Cooper (Supra).
    (b) Therefore, there is an indivisible connection
    between all the fundamental rights, and any law
    creating restrictions on rights must be in13
    conformity with Articles 14, 19 and 21 of the
    Constitution.
    (c) The law must satisfy the test of substantive as well
    as procedural due process.
    (d) In particular, Bhagwati, J. affirmed the minority
    view expressed by Subba Rao, J. in Kharak Singh
    (Supra):
    “5. It is obvious that Article 21, though
    couched in negative language, confers the
    fundamental right to life and personal
    liberty. So far as the right to personal
    liberty is concerned, it is ensured by
    providing that no one shall be deprived of
    personal liberty except according to
    procedure prescribed by law. The first
    question that arises for consideration on
    the language of Article 21 is : what is the
    meaning and content of the words
    “personal liberty” as used in this article?
    This question incidentally came up for
    discussion in some of the judgments in A.K.
    Gopalan v. State of Madras [AIR 1950 SC
    27 : 1950 SCR 88 : 51 Cri LJ 1383] and the
    observations made by Patanjali Sastri, J.,
    Mukherjea, J., and S.R. Das, J., seemed to
    place a narrow interpretation on the words
    “personal liberty” so as to confine the
    protection of Article 21 to freedom of the
    person against unlawful detention. But
    there was no definite pronouncement
    made on this point since the question
    before the Court was not so much the
    interpretation of the words “personal
    liberty” as the inter-relation between
    Articles 19 and 21. It was in Kharak Singh
    v. State of U.P. [AIR 1963 SC 1295 : (1964)
    1 SCR 332 : (1963) 2 Cri LJ 329] that the
    question as to the proper scope and
    meaning of the expression “personal
    liberty” came up pointedly for
    consideration for the first time before this
    Court. The majority of the Judges took the
    view “that “personal liberty” is used in the
    article as a compendious term to include
    within itself all the varieties of rights which
    go to make up the “personal liberties” of14
    man other than those dealt with in the
    several clauses of Article 19(1). In other
    words, while Article 19(1) deals with
    particular species or attributes of that
    freedom, ‘personal liberty’ in Article 21
    takes in and comprises the residue. The
    minority Judges, however, disagreed with
    this view taken by the majority and
    explained their position in the following
    words: “No doubt the expression ‘personal
    liberty’ is a comprehensive one and the
    right to move freely is an attribute of
    personal liberty. It is said that the freedom
    to move freely is carved out of personal
    liberty and, therefore, the expression
    ‘personal liberty’ in Article 21 excludes
    that attribute. In our view, this is not a
    correct approach. Both are independent
    fundamental rights, though there is
    overlapping. There is no question of one
    being carved out of another. The
    fundamental right of life and personal
    liberty has many attributes and some of
    them are found in Article 19. If a person’s
    fundamental right under Article 21 is
    infringed, the State can rely upon a law to
    sustain the action, but that cannot be a
    complete answer unless the said law
    satisfies the test laid down in Article 19(2)
    so far as the attributes covered by Article
    19(1) are concerned.” There can be no
    doubt that in view of the decision of this
    Court in R.C. Cooper v. Union of India
    [(1970) 2 SCC 298 : (1971) 1 SCR 512] the
    minority view must be regarded as correct
    and the majority view must be held to have
    been overruled.
    (emphasis supplied)

    1. Further, in para 96, Krishna Iyer, J, in his inimitable style stated as under:
    “96. A thorny problem debated recurrently at
    the bar, turning on Article 19, demands some
    juristic response although avoidance of overlap
    persuades me to drop all other questions
    canvassed before us. The Gopalan verdict, with
    the cocooning of Article 22 into a self-contained
    code, has suffered suppression at the hands of
    R.C. Cooper [Rustom Cavasjee Cooper v. Union of15
    India, (1970) 3 SCR 530 : (1970) 1 SCC 248] .
    By way of aside, the fluctuating fortunes of
    fundamental rights, when the proletarist and
    the proprietarist have asserted them in Court,
    partially provoke sociological research and
    hesitantly project the Cardozo thesis of subconscious forces in judicial noesis when the
    cycloramic review starts from Gopalan, moves
    on to In re Kerala Education Bill [1959 SCR 995
    AIR 1958 SC 956] and then on to All-India Bank
    Employees’ Association [All-India Bank
    Employees’ Association v. National Industrial
    Tribunal, (1962) 3 SCR 269 : AIR 1962 SC 171 :
    21 FJR 63 : (1961) 2 LLJ 385] , next to Sakal
    Papers [Sakal Papers (P) Ltd. v. Union of India,
    (1962) 3 SCR 842 : AIR 1962 SC 305 : (1962) 2
    SCJ 400] , crowning in Cooper and followed by
    Bennett Coleman [Bennett Coleman & Co. v.
    Union of India, (1973) 2 SCR 757 : (1972) 2 SCC
    788] and Shambhu Nath Sarkar [Shambhu Nath
    Sarkar v. State of W.B., (1973) 1 SCC 856 : 1973
    SCC (Cri) 618] . Be that as it may, the law is now
    settled, as I apprehend it, that no article in Part
    III is an island but part of a continent, and the
    conspectus of the whole part gives the direction
    and correction needed for interpretation of
    these basic provisions. Man is not dissectible
    into separate limbs and, likewise, cardinal rights
    in an organic constitution, which make man
    human have a synthesis. The proposition is
    indubitable that Article 21 does not, in a given
    situation, exclude Article 19 if both rights are breached.”
    1. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Sikri C.J. noticed:
      a. The Preamble is a part of the Indian Constitution.
      b. The Preamble constitutes India into a sovereign democratic republic and to secure to all its citizens and guarantees

    “JUSTICE, social, economic and political;
    LIBERTY of thought, expression, belief, faith and worship;16
    EQUALITY of status and of opportunity; and to promote among them all;
    FRATERNITY assuring the dignity of the individual….”

    c. “The Preamble of our Constitution is of extreme
    importance and the Constitution should be read and
    interpreted in the light of the grand and noble vision
    expressed in the Preamble….”.

    d. The Universal Declaration of Human Rights, 1948 was
    considered and it was held as follows:
    “148-49. I may here mention that while our
    fundamental rights and directive principles
    were being fashioned and approved of by the
    Constituent Assembly, on December 10, 1948,
    the General Assembly of the United Nations
    adopted a Universal Declaration of Human
    Rights. The Declaration may not be a legally
    binding instrument but it shows how India
    understood the nature of human rights.”

    e. Regard may be had to the following recital in the
    Universal Declaration of Human Rights, 1948 “Whereas
    the peoples of the United Nations have in the Charter
    reaffirmed their faith in fundamental human rights, in
    the dignity and worth of the human person and in the
    equal rights of men and women and have determined to
    promote social progress and better standards of life in
    larger freedom” .

    f. Further, that certain inalienable right ought to be guaranteed, and held:17
    “150. In the Preamble to the International Covenant
    on Economic and Social and Cultural Rights, 1966,
    inalienability of rights is indicated in the first para
    as follows:
    “Considering that, in accordance with the
    principles proclaimed in the Charter of the
    United Nations, recognition of the inherent
    dignity and of the equal and inalienable
    rights of all members of the human family is
    the foundation of freedom, justice and peace
    in the world.””
    25. The fundamental proposition that was held in Kesavananda
    (Supra) was that certain rights are basic and inalienable.
    26. While describing the Basic Structure, Sikri C.J. remarked:
    “292. The learned Attorney-General said that
    every provision of the Constitution is essential;
    otherwise it would not have been put in the
    Constitution. This is true. But this does not place
    every provision of the Constitution in the same
    position. The true position is that every
    provision of the Constitution can be amended
    provided in the result the basic foundation and
    structure of the constitution remains the same.
    The basic structure may be said to consist of the
    following features:
    (1) Supremacy of the Constitution;
    (2) Republican and Democratic form of
    Government;
    (3) Secular character of the Constitution;
    (4) Separation of powers between the
    legislature, the executive and the judiciary;
    (5) Federal character of the Constitution.
    293. The above structure is built on the basic
    foundation i.e. the dignity and freedom of the
    individual. This is of supreme importance. This
    cannot by any form of amendment be
    destroyed.”
    (emphasis supplied)18
    27. Sikri, C.J. held that some rights were natural and inalienable
    and he cited a large number of decisions to describe what
    could be natural and inalienable rights. The liberty of the
    person and his essential freedoms for whom the Constitution
    is intended and from which the State is injuncted from
    interfering, and must be viewed as a part of the Basic
    Structure. In this respect Sikri C.J. held as under:
    “299. I am unable to hold that these provisions
    show that some rights are not natural or
    inalienable rights. As a matter of fact, India was
    a party to the Universal Declaration of Rights
    which I have already referred to and that
    Declaration describes some fundamental rights
    as inalienable.”

    28. It is submitted that the right to privacy invariably means the
    inviolability of the person. The expression ‘person’ includes
    the body as well as the inviolate personality. It is submitted
    that privacy really is intended to indicate the realm of
    inviolable sanctuary that most of us sense in our beings. It
    refers to spatial sanctity, freedom in decisional autonomy,
    informational privacy as well as the ability to freely develop
    one’s personality and exercise discretion and judgment. It
    may be noted that both in Abington School District v.
    Schempp 374 US 203 (at pp. 226) and Fisher v. United States
    425 US 391 (at pp. 416), the expression on inviolability uses
    spatial imagery of the castle or the sanctuary to convey the
    appropriate inaccessibility of the person, the inviolable
    citadel of a person’s heart and mind, or the inner sanctum of
    individual feeling and thought. The usage of the term
    personhood in privacy jurisprudence is attributed to19
    Professor Freund, who in 1975 made the following
    observations:
    “The theme of personhood is … emerging. It has
    been groping, I think, for a rubric. Sometimes it
    is called privacy, inaptly it would seem to me;
    autonomy perhaps, though that seems too
    dangerously broad. But the idea is that of
    personhood in the sense of those attributes of an
    individual which are irreducible in his
    selfhood.”1
    29. In the context of the Indian Constitution, three articles, i.e.
    Articles 14, 19 and 21– form its sanctum sanctorum.
    Identifying the special status of these three articles, the
    Hon’ble Supreme Court in Minerva Mills Ltd. v. Union of India
    (1980) 3 SCC 625 observed:
    “74. Three Articles of our Constitution, and only
    three, stand between the heaven of freedom into
    which Tagore wanted his country to awake and
    the abyss of unrestrained power. They are
    Articles 14, 19 and 21. Article 31-C has removed
    two sides of that golden triangle which affords to
    the people of this country an assurance that the
    promise held forth by the preamble will be
    performed by ushering an egalitarian era
    through the discipline of fundamental rights,
    that is, without emasculation of the rights to
    liberty and equality which alone can help
    preserve the dignity of the individual.”
    (emphasis supplied)

    30. Laurence Tribe, in order to show the underlying purpose of
    the right to privacy and why it is one of the foundational
    elements of a democratic nation, wrote in his book2 as under:
    “Finally, the right to privacy is a requirement of
    democracy. When none of us can be certain what
    the state knows about us or how it might use that
    information, the relationship between the
    governed and the government is fundamentally
    1 Personhood: The Right to be Left Alone (1976) Duke LJ 699, 702.
    2 Tribe, Laurence, and Joshua Matz. Uncertain Justice: The Roberts Court and the
    Constitution. Henry Holt and Company, 2014.20
    altered. The state’s unlimited access to whatever
    information it wishes to obtain about each
    citizen can create a profound power imbalance
    and feeling of vulnerability. As Justice Robert
    Jackson once wrote of searches and seizures,
    “Among deprivations of rights, none is so
    effective in cowing a population, crushing the
    spirit of the individual and putting terror in
    every heart.” This is especially true when the
    state develops the ability to combine many small
    pieces of data into a full picture of our lives. Even
    if we trust the state not to abuse the information
    and search only for true threats, the risk that
    our vast intelligence bureaucracy will make an
    egregious error is unavoidable. Entirely
    innocent personal information can be abused,
    leaked, distorted, and put to mischievous use in
    unpredictable ways. Without protection of
    privacy, democratic life could suffer a dangerous chill.”

    31. Roscoe Pound, while expounding on natural rights, observed
    that “the law does not create them, it only recognizes them.”
    He further observed:
    “Individual interests which it is conceived the
    law ought to secure are usually called “natural
    rights” because they are not the creatures of the
    state and it is held that the pressure of these
    interests has brought about the state. In the
    stage of equity or natural law, when what ought
    to be law is made the test of what is, it is natural
    to confuse the interests which the law does
    secure, the interests it ought to secure, and the
    means of securing them under the one name of
    “rights.” Those which are secured and the means
    whereby they are secured are called legal rights;
    those which ought to be secured are called natural rights.”

    32. Privacy is a part of personhood and is therefore a natural right. This is why the natural right is not conferred but only recognized by the Constitution.
    ” Interests of Personality” Vol. XXVIII No. 4 February 1915.21

    33. In I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, the Court observed:
    “56. The fundamentalness of fundamental rights
    has thus to be examined having regard to the
    enlightened point of view as a result of
    development of fundamental rights over the
    years. It is, therefore, imperative to understand
    the nature of guarantees under fundamental
    rights as understood in the years that
    immediately followed after the Constitution was
    enforced when fundamental rights were viewed
    by this Court as distinct and separate rights. In
    early years, the scope of the guarantee provided
    by these rights was considered to be very
    narrow. Individuals could only claim limited
    protection against the State. This position has
    changed since long. Over the years, the
    jurisprudence and development around
    fundamental rights has made it clear that they
    are not limited, narrow rights but provide a
    broad check against the violations or excesses
    by the State authorities. The fundamental rights
    have in fact proved to be the most significant
    constitutional control on the Government,
    particularly legislative power. This transition
    from a set of independent, narrow rights to
    broad checks on State power is demonstrated by
    a series of cases that have been decided by this
    Court. In State of Bombay v. Bhanji Munji [AIR
    1955 SC 41 : (1955) 1 SCR 777] relying on the
    ratio of Gopalan [AIR 1950 SC 27 : 1950 SCR 88
    : 1950 Cri LJ 1383] it was held that Article 31
    was independent of Article 19(1)(f). However, it
    was in Rustom Cavasjee Cooper v. Union of India
    [(1970) 1 SCC 248 : (1970) 3 SCR 530]
    (popularly known as Bank Nationalisation case)
    that the viewpoint of Gopalan [AIR 1950 SC 27 :
    1950 SCR 88 : 1950 Cri LJ 1383] was seriously
    disapproved… While examining this question the
    Court stated that the actual effect of the law on
    the right guaranteed must be taken into account.
    This ratio was applied in Bank Nationalisation
    case [(1970) 1 SCC 248 : (1970) 3 SCR 530] .
    The Court examined the relation between Article
    19(1)(f) and Article 13 and held that they were
    not mutually exclusive. The ratio of Gopalan
    [AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ
    1383] was not approved.22
    60. It is evident that it can no longer be
    contended that protection provided by
    fundamental rights comes in isolated pools. On
    the contrary, these rights together provide a
    comprehensive guarantee against excesses by
    State authorities. Thus post-Maneka Gandhi
    case [(1978) 1 SCC 248] it is clear that the
    development of fundamental rights has been
    such that it no longer involves the interpretation
    of rights as isolated protections which directly
    arise but they collectively form a comprehensive
    test against the arbitrary exercise of State
    power in any area that occurs as an inevitable
    consequence. The protection of fundamental
    rights has, therefore, been considerably
    widened.

    61. The approach in the interpretation of
    fundamental rights has been evidenced in a
    recent case M. Nagaraj v. Union of India [(2006)
    8 SCC 212] in which the Court noted: (SCC pp.
    241-42, para 20)
    “20. This principle of interpretation is
    particularly apposite to the interpretation
    of fundamental rights. It is a fallacy to
    regard fundamental rights as a gift from
    the State to its citizens. Individuals possess
    basic human rights independently of any
    Constitution by reason of the basic fact that
    they are members of the human race.
    These fundamental rights are important as
    they possess intrinsic value. Part III of the
    Constitution does not confer fundamental
    rights. It confirms their existence and
    gives them protection. Its purpose is to
    withdraw certain subjects from the area of
    political controversy to place them beyond
    the reach of majorities and officials and to
    establish them as legal principles to be
    applied by the courts. Every right has a
    content. Every foundational value is put in
    Part III as a fundamental right as it has
    intrinsic value. The converse does not
    apply. A right becomes a fundamental right
    because it has foundational value… An
    instance of literal and narrow
    interpretation of a vital fundamental right
    in the Indian Constitution is the early
    decision of the Supreme Court in A.K.
    Gopalan v. State of Madras [AIR 1950 SC
    27 : 1950 SCR 88 : 1950 Cri LJ 1383] .
    Article 21 of the Constitution provides that23
    no person shall be deprived of his life and
    personal liberty except according to
    procedure established by law. The
    Supreme Court by a majority held that
    ‘procedure established by law’ means any
    procedure established by law made by
    Parliament or the legislatures of the State.
    The Supreme Court refused to infuse the
    procedure with principles of natural
    justice. It concentrated solely upon the
    existence of enacted law. After three
    decades, the Supreme Court overruled its
    previous decision in A.K. Gopalan [AIR
    1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ
    1383] and held in its landmark judgment
    in Maneka Gandhi v. Union of India
    [(1978) 1 SCC 248] that the procedure
    contemplated by Article 21 must answer
    the test of reasonableness. The Court
    further held that the procedure should also
    be in conformity with the principles of
    natural justice. This example is given to
    demonstrate an instance of expansive
    interpretation of a fundamental right. The
    expression ‘life’ in Article 21 does not
    connote merely physical or animal
    existence. The right to life includes right to
    live with human dignity. This Court has in
    numerous cases deduced fundamental
    features which are not specifically
    mentioned in Part III on the principle that
    certain unarticulated rights are implicit in
    the enumerated guarantees.””
    (emphasis supplied)

    34. In Selvi v. State of Karnataka (2010) 7 SCC 263, the Court
    reaffirmed the position laid down in Maneka (Supra) case and
    clarified that the decision of Bhagwati, J. in Maneka (Supra)
    had effectively made it clear that the minority opinion of
    Subba Rao, J. was the correct exposition of law. In fact, it may
    not be out of place to suggest that the understanding of MP
    Sharma (Supra) and Kharak Singh (Supra) being urged by
    the Attorney General is no longer tenable in view of the24
    decision in Selvi (Supra) having firmly closed the door on
    such an argument and having held that there is a fundamental
    right to privacy notwithstanding the decisions in M.P. Sharma
    (Supra) and Kharak Singh (Supra). The Court made the
    following observations:
    “205. In M.P. Sharma [AIR 1954 SC 300 : 1954
    Cri LJ 865 : 1954 SCR 1077] it had been noted
    that the Indian Constitution did not explicitly
    include a “right to privacy” in a manner akin to
    the Fourth Amendment of the US Constitution.
    In that case, this distinction was one of the
    reasons for upholding the validity of search
    warrants issued for documents required to
    investigate charges of misappropriation and
    embezzlement.
    206. Similar issues were discussed in Kharak
    Singh v. State of U.P. [AIR 1963 SC 1295 :
    (1963) 2 Cri LJ 329] , where the Court
    considered the validity of the Police Regulations
    that authorised police personnel to maintain
    lists of “history-sheeters” in addition to
    conducting surveillance activities, domiciliary
    visits and periodic inquiries about such persons.
    The intention was to monitor persons suspected
    or charged with offences in the past, with the
    aim of preventing criminal acts in the future. At
    the time, there was no statutory basis for these
    Regulations and they had been framed in the
    exercise of administrative functions. The
    majority opinion (Ayyangar, J.) held that these
    Regulations did not violate “personal liberty”,
    except for those which permitted domiciliary
    visits. The other restraints such as surveillance
    activities and periodic inquiries about “historysheeters” were justified by observing: (AIR p. 1303, para 20)
    “20. … the right of privacy is not a
    guaranteed right under our Constitution
    and therefore the attempt to ascertain the
    movements of an individual which is
    merely a manner in which privacy is
    invaded is not an infringement of a
    fundamental right guaranteed by Part III.”25
    207. Ayyangar, J. distinguished between
    surveillance activities conducted in the routine
    exercise of police powers and the specific act of
    unauthorised intrusion into a person’s home
    which violated “personal liberty”. However, the
    minority opinion (Subba Rao, J.) in Kharak
    Singh [AIR 1963 SC 1295 : (1963) 2 Cri LJ 329]
    took a different approach by recognising the
    interrelationship between Articles 21 and 19,
    thereby requiring the State to demonstrate the
    “reasonableness” of placing such restrictions on
    “personal liberty”. (This approach was later
    endorsed by Bhagwati, J. in Maneka
    Gandhi v. Union of India [Maneka
    Gandhi v. Union of India, (1978) 1 SCC 248 : AIR
    1978 SC 597] , see AIR p. 622.) Subba Rao, J.
    held that the right to privacy “is an essential
    ingredient of personal liberty” and that the right
    to “personal liberty” is “a right of an individual
    to be free from restrictions or encroachments on
    his person, whether those restrictions or
    encroachments are directly imposed or
    indirectly brought about by calculated
    measures”. (AIR at p. 1306, para 31)…
    209. Following the judicial expansion of the idea
    of “personal liberty”, the status of the “right to
    privacy” as a component of Article 21 has been
    recognised and reinforced…”
    35. Rohinton Nariman, J. in Mohd Arif v. Supreme Court of India
    (2014) 9 SCC 737 in a concise and lucid summary identified
    the change from the Gopalan era to the Maneka Gandhi era in
    the following passages:
    “25. In Kharak Singh v. State of U.P. [(1964) 1
    SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ
    329] , Gopalan’s [A.K. Gopalan v. State of
    Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950)
    51 Cri LJ 1383] reading of fundamental rights
    in watertight compartments was reiterated by
    the majority. However, they went one step
    further to say that “personal liberty” in Art. 21
    takes in and comprises the residue after all the
    rights granted by Art. 19.
    Justices Subba Rao and Shah disagreed. They
    held:26
    “The fundamental right of life and personal
    liberty have many attributes and some of them
    are found in Art. 19. If a person’s fundamental
    right under Art. 21 is infringed, the State can
    rely upon a law to sustain the action; but that
    cannot be a complete answer unless the said law
    satisfies the test laid down in Art. 19(2) so far
    as the attributes covered by Art. 19(1) are
    concerned. In other words, the State must
    satisfy that both the fundamental rights are not
    infringed by showing that there is a law and that
    it does amount to a reasonable restriction
    within the meaning of Art. 19(2) of the
    Constitution. But in this case no such defence is
    available, as admittedly there is no such law. So
    the petitioner can legitimately plead that his
    fundamental rights both under Art. 19(1)(d)
    and Art. 21 are infringed by the State.” (at pages 356-357)

    26. The minority judgment of Subba Rao and
    Shah, JJ. eventually became law in Rustom
    Cavasjee Cooper (BanksNationalisation) v. Union of India [RustomCavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC
    248] , where the 11-Judge Bench finally
    discarded Gopalan’s [A.K. Gopalan v. State of
    Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950)
    51 Cri LJ 1383] view and held that various
    fundamental rights contained in different
    articles are not mutually exclusive: (SCC p. 289,para 53)

    “53. We are therefore unable to hold that
    the challenge to the validity of the
    provision for acquisition is liable to be
    tested only on the ground of noncompliance with Article 31(2). Article
    31(2) requires that property must be
    acquired for a public purpose and that it
    must be acquired under a law with
    characteristics set out in that Article.
    Formal compliance with the conditions
    under Article 31(2) is not sufficient to
    negative the protection of the guarantee of
    the right to property. Acquisition must be
    under the authority of a law and the
    expression “law” means a law which is
    within the competence of the Legislature,
    and does not impair the guarantee of the
    rights in Part III. We are unable, therefore,27
    to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”

    27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the
    upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393- 95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer,J]

    36. In view of the above submissions, it is respectfully submitted that the right to privacy is recognized as a fundamental right under Article 21 of the Constitution. It is also submitted that this has been the settled position of law since the overturning of the decision in A.K. Gopalan (Supra) by way of judgments in R. C. Cooper (Supra) and Maneka Gandhi (Supra). The concept of privacy is embedded in liberty as well as honour of a person.

    19th July 2017

    SUBMITTED BY xxxxx SUBRAMANIUM

    Devider

     

     

     

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