Specimen Written Submission [Format]

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”.

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” .

<

p style=”text-align:justify;”>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.”

<

p style=”text-align:justify;”>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