Justice K.S. Puttaswamy (Retd.) v. Union of India

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Justice K.S. Puttaswamy (Retd.) v. Union of India | Judgment | Law on Tips

3 A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy. The Attorney General for India urged that the existence of a fundamental right of privacy is in doubt in view of two decisions : the first – M P Sharma v Satish Chandra, District Magistrate, Delhi1 (“M P Sharma”) was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh2 (“Kharak Singh”) was rendered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the submission of the petitioners was that M P Sharma and Kharak Singh were founded on principles expounded in A K Gopalan v State of Madras3 (“Gopalan” ). Gopalan, which construed each provision contained in the Chapter on fundamental rights as embodying a distinct protection, was held not to be good law by an eleven-judge 1 (1954) SCR 1077 2 (1964) 1 SCR 332 3 AIR 1950 SC 27 5 PART A Bench in Rustom Cavasji Cooper v Union of India4 (“Cooper”). Hence the petitioners submitted that the basis of the two earlier decisions is not valid. Moreover, it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union of India5 (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved of and the decision of the majority was overruled. 4 While addressing these challenges, the Bench of three judges of this Court took note of several decisions of this Court in which the right to privacy has been held to be a constitutionally protected fundamental right. Those decisions include : Gobind v State of Madhya Pradesh6 (“Gobind” ), R Rajagopal v State of Tamil Nadu7 (“Rajagopal” ) and People’s Union for Civil Liberties v Union of India8 (“PUCL”). These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions of importance involving interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned judges observed in its order dated 11 August 2015:

6 During the course of hearing, we have been ably assisted on behalf of the petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr Arvind Datar, Mr Shyam Divan, Mr Anand Grover, Ms Meenakshi Arora, Mr Sajan Poovayya and Mr Jayant Bhushan, learned senior counsel. Mr J S Attri, learned senior counsel supported them on behalf of the State of Himachal Pradesh. On behalf of the Union of India, the Court has had the benefit of the erudite submissions of Mr K K Venugopal, Attorney General for India. He has been ably supported by Mr Tushar Mehta, Additional Solicitor General, Mr Rakesh Dwivedi, senior counsel for the State of Gujarat, Mr Aryama Sundaram for the State of Maharashtra, Mr Gopal Sankaranarayanan and Dr Arghya Sengupta respectively. While some state governments have supported the stand of the Union government, others have supported the petitioners. 7 The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course of the reference. Besides, the jurisprudential correctness of subsequent decisions holding the right to privacy to be a constitutionally protected right is to be determined. The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy. The contents of privacy need to 8 PART B be analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by indicating its broad contours. The Court has been addressed on various aspects of privacy including : (i) Whether there is a constitutionally protected right to privacy; (ii) If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty; (iii) the doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the nature of the regulatory power of the state.

“In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a 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 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”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. 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. If so understood, all the acts of surveillance under 16 PART D Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.”19 (emphasis supplied) Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v Colorado which specifically advert to privacy. The majority, while relying upon them to invalidate domiciliary visits at night, regards the sanctity of the home as part of ordered liberty. In the context of other provisions of the regulation, the majority declines to recognise a right of privacy as a constitutional protection. Justice Subba Rao recognised a constitutional by protected right to privacy, considering it as an ingredient of personal liberty.

“Subba Rao J. (as he then was) read personal liberty as the antithesis of physical restraint or coercion and found that Articles 19(1) and 21 overlapped and Article 19(1)(d) was not carved out of personal liberty in Article 21. According to him, personal liberty could be curtailed by law, but that law must satisfy the test in Article 21 Ibid, at pages 52-53 22 (1967) 3 SCR 525 19 PART E 19(2) in so far as the specific rights in Article 19(1)(3) 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 not amount to an unreasonable restriction within the meaning of Article 19(2) of the Constitution. As in that case there was no law, fundamental rights, both under Article 19(1)(d) and Article 21 were held to be infringed. The learned Chief Justice has read into the decision of the Court a meaning which it does not intend to convey. He excludes from Article 21 the right to free motion and locomotion within the territories of India and puts the right to travel abroad in Article 21. He wants to see a law and if his earlier reasoning were to prevail, the law should stand the test of Article 19(2). But since clause (2) deals with matters in Article 19(1) already held excluded, it is obvious that it will not apply. The law which is made can only be tested on the ground of articles other than Article 19 such as Articles 14 , 20 and 22 which alone bears upon this matter. In other words, the majority decision of the Court in this case has rejected Ayyangar J.'s view and accepted the view of the minority in Kharak Singh case… This view obviously clashes with the reading of Article 21 in Kharak Singh case, because there the right of motion and locomotion was held to be excluded from Article 21. In other words, the present decision advances the minority view in Kharak Singh case above the majority view stated in that case.”23 E Cooper and Maneka : Interrelationship between rights

“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” of 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.”25 (emphasis supplied)

24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the relationship between Articles 19 and 21 , based on the view of the majority in Gopalan. This view stands abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty three years ago in M P Sharma and fifty five years ago in Kharak Singh has given way to what is now a settled position in constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as 23 PART E distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III. 25 The doctrinal invalidation of the basic premise underlying the decisions in M P Sharma and Kharak Singh still leaves the issue of whether privacy is a right protected by Part III of the Constitution open for consideration. There are observations in both decisions that the Constitution does not contain a specific protection of the right to privacy. Presently, the matter can be looked at from the perspective of what actually was the controversy in the two cases. M P Sharma was a case where a law prescribing a search to obtain documents for investigating into offences was challenged as being contrary to the guarantee against self-incrimination in Article 20(3). The Court repelled the argument that a search for documents compelled a person accused of an offence to be witness against himself. Unlike a notice to produce documents, which is addressed to a person and whose compliance would constitute a testimonial act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the warrant is addressed, within the meaning of Article 20(3). The Court having held this, the controversy in M P Sharma would rest at that. The observations in M P Sharma to the effect that the constitution makers had not thought it fit to subject the regulatory power of search and seizure to constitutional limitations 24 PART E by recognising a fundamental right of privacy (like the US Fourth amendment), and that there was no justification to impart it into a ‘totally different fundamental right’ are at the highest, stray observations.

“But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the court's protection which the court will not hesitate to give. The very Rules 72 Ibid, at pages 424-425 (para 6) 47 PART H which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following Rule 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobtrusive and within bounds.”73 The observations in Malak Singh on the issue of privacy indicate that an encroachment on privacy infringes personal liberty under Article 21 and the right to the freedom of movement under Article 19(1)(d). Without specifically holding that privacy is a protected constitutional value under Article 19 or Article 21 , the judgment of this Court indicates that serious encroachments on privacy impinge upon personal liberty and the freedom of movement. The Court linked such an encroachment with the dignity of the individual which would be offended by surveillance bereft of procedural protections and carried out in a manner that would obstruct the free exercise of freedoms guaranteed by the fundamental rights.

“The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone- tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”90 The Court also held that telephone tapping infringes the guarantee of free speech and expression under Article 19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of privacy under Article 17 of the International Covenant on Civil and Political Rights (and a similar guarantee under Article 12 of the Universal Declaration of Human Rights) which, in its view, must be an interpretative tool for 89 Ibid, at page 311 (para 17) 90 Ibid, at page 311 (para 18) 58 PART H construing the provisions of the Constitution. Article 21 , in the view of the Court, has to be interpreted in conformity with international law. In the absence of rules providing for the precautions to be adopted for preventing improper interception and/or disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not inclined to require prior judicial scrutiny before intercepting telephone conversations. The Court ruled that it would be necessary to lay down procedural safeguards for the protection of the right to privacy of a person until Parliament intervened by framing rules under Section 7 of the Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases envisaging telephone tapping.

“Secondly, the impugned provision in Section 73 enabling the Collector to authorise “any person” whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and more importantly, the section allows the facts relating to the customer's privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customer's rights. This part of Section 73 permitting delegation to 105 Ibid, at page 523 (para 53) 65 PART H “any person” suffers from the above serious defects and for that reason is, in our view, unenforceable. The State must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the State.”106 66 The significance of the judgment in Canara Bank lies first in its reaffirmation of the right to privacy as emanating from the liberties guaranteed by Article 19 and from the protection of life and personal liberty under Article 21. Secondly, the Court finds the foundation for the reaffirmation of this right not only in the judgments in Kharak Singh and Gobind and the cases which followed, but also in terms of India’s international commitments under the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). Thirdly, the right to privacy is construed as a right which attaches to the person. The significance of this is that the right to privacy is not lost as a result of confidential documents or information being parted with by the customer to the custody of the bank. Fourthly, the Court emphasised the need to read procedural safeguards to ensure that the power of search and seizure of the nature contemplated by Section 73 is not exercised arbitrarily. Fifthly, access to bank records to the Collector does not permit a delegation of those powers by the Collector to a private individual. Hence even when the power to inspect and search is validly exercisable by an organ of the state, necessary safeguards would be required to ensure that the information does not travel to unauthorised private hands. Sixthly, information provided by an individual to a third party (in that case a bank) carries with it a reasonable expectation that it will be utilised 106 Ibid, at page 524 (para 54) 66 PART H only for the purpose for which it is provided. Parting with information (to the bank) does not deprive the individual of the privacy interest. The reasonable expectation is allied to the purpose for which information is provided. Seventhly, while legitimate aims of the state, such as the protection of the revenue may intervene to permit a disclosure to the state, the state must take care to ensure that the information is not accessed by a private entity. The decision in Canara Bank has thus important consequences for recognising informational privacy.

90 Gobind proceeded on the basis of an assumption and explains what according to the Court would be the content of the right to privacy if it is held to be a constitutional right. Gobind underlines that the right would be intrinsic to ordered liberty and would cover intimate matters such as family, marriage and procreation. Gobind, while recognizing that the right would not be absolute and would be subject to the regulatory power of the State, conditioned the latter on the existence of a compelling state 89 PART H interest. The decision also brings in the requirement of a narrow tailoring of the regulation to meet the needs of a compelling interest. The Bench which decided Gobind adverted to the decision in Kharak Singh (though not M P Sharma). Be that as it may, Gobind has proceeded on the basis of an assumption that the right to privacy is a constitutionally protected right in India. Subsequent decisions of this Court have treated the formulation of a right to privacy as one that emerges out of Kharak Singh or Gobind (or both). Evidently, it is the first part of the decision in Kharak Singh which is construed as having recognized a constitutional entitlement to privacy without reconciling the second part which contains a specific observation on the absence of a protected constitutional right to privacy in the Constitution. Succeeding Benches of smaller strength were not obviously in a position to determine the correctness of the M P Sharma and Kharak Singh formulations. They had to weave a jurisprudence of privacy as new challenges emerged from a variety of sources: wire- tapping, narco-analysis, gender based identity, medical information, informational autonomy and other manifestations of privacy. As far as the decisions following upon Gobind are concerned, it does emerge that the assumptions which find specific mention in several parts of the decision were perhaps not adequately placed in perspective. Gobind has been construed by subsequent Benches as affirming the right to privacy.

91 The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 90 PART H and the freedoms set out in Article 19. In addition, India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy. 153 In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party. Consequently, as new cases brought new issues and problems before the Court, the content of the right to privacy has found elaboration in these diverse contexts. These would include telephone tapping (PUCL), prior restraints on publication of material on a death row convict (Rajagopal), inspection and search of confidential documents involving the banker - customer relationship (Canara Bank), disclosure of HIV status ( Mr X v Hospital Z ), food preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of pregnancy (Suchita Srivastava), scientific tests in criminal investigation (Selvi), disclosure of bank accounts held overseas (Ram Jethmalani) and the right of transgenders (NALSA). Early cases dealt with police regulations authorising intrusions on liberty, such as surveillance. As Indian society has evolved, the assertion of the right to privacy has been considered by this Court in varying contexts replicating the choices and autonomy of the individual citizen. 153 See Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation, Eastern Book Company (2014), for a comprehensive account on the right to privacy and privacy laws in India. 91 PART I 92 The deficiency, however, is in regard to a doctrinal formulation of the basis on which it can be determined as to whether the right to privacy is constitutionally protected. M P Sharma need not have answered the question; Kharak Singh dealt with it in a somewhat inconsistent formulation while Gobind rested on assumption. M P Sharma being a decision of eight judges, this Bench has been called upon to decide on the objection of the Union of India to the existence of such a right in the first place.

106 Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. ‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical 176 (2016) 7 SCC 761 177 Aharon Barak, Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge University Press (2015) 178 Supra Note 176, at page 792 (para 37) 99 PART I body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life. 107 To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve. Fundamental Rights cases 108 In Golak Nath v State of Punjab179 , there was a challenge to the Punjab Security of Land Tenures Act, 1953 and to the Mysore Land Reforms Act (as amended) upon their inclusion in the Ninth Schedule to the Constitution. Chief Justice Subba Rao dwelt on the rule of law and its purpose in ensuring that every authority constituted by the Constitution is subject to it and functions within its 179 (1967) 2 SCR 762 100 PART I parameters. One of the purposes of constraining governmental power was to shield the fundamental freedoms against legislative majorities. This thought is reflected in the following extract from the judgment of Chief Justice Subba Rao:

“On a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or 183 Ibid, at page 366 (para 292) 184 Ibid, at page 454 (para 582) 104 PART I emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a welfare State and egalitarian society. These limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligation imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of Governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by revolution. Every encroachment on freedom sets a pattern for further encroachments. Our constitutional plan is to eradicate poverty without destruction of individual freedoms.”185 (emphasis supplied) Justice Jaganmohan Reddy held that:

113 The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position. The argument assumes that the right to privacy is independent of the liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the 194 Ibid, at pages 653-654 109 PART I liberties and freedoms which are the cornerstone of the Constitution. To recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat. Neither are the judges nor is the process of judicial review entrusted with the constitutional responsibility to amend the Constitution. But judicial review certainly has the task before it of determining the nature and extent of the freedoms available to each person under the fabric of those constitutional guarantees which are protected. Courts have traditionally discharged that function and in the context of Article 21 itself, as we have already noted, a panoply of protections governing different facets of a dignified existence has been held to fall within the protection of Article 21. 114 In Olga Tellis v Bombay Municipal Corporation195, Chandrachud C J , while explaining the ambit of Article 21 found a rationale for protecting the right to livelihood as an incident of the right to life. For, as the Court held, deprivation of livelihood would result in the abrogation of the right to life:

“…it cannot be overlooked that, in the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the Constitution itself. The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law. he shall not be entitled to enforce his right of personal liberty, whilst a Presidential Order under Article 359 , clause (1) specifying Article 21 is in force, I have to give effect to it. Sitting as I do, as a Judge under the Constitution, I cannot ignore the plain and emphatic command of the Constitution for what I may consider to be necessary to meet the ends of justice. It is said that law has 203 Ibid, at page 666 (para 383) 204 Ibid, at page 701 (para 459) 115 PART I the feminine capacity to tempt each devotee to find his own image in her bosom. No one escapes entirely. Some yield blindly, some with sophistication. Only a few more or less effectively resist. I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at its altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear. I cannot assume to myself the role of Plato's “Philosopher King” in order to render what I consider ideal justice between the citizen and the State. After all, the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support and its final resting place. It is in this spirit of humility and obedience to the Constitution and driven by judicial compulsion, that I have come to the conclusion that the Presidential Order dated June 27, 1975 bars maintainability of a writ petition for habeas corpus where an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it.”205 In his dissenting opinion, Justice Khanna emphatically held that the suspension of the right to move any Court for the enforcement of the right under Article 21 , upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty. The Constitution was not the sole repository of the right to life and liberty:

“The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless…”209 119 The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live 208 Ibid, at page 751 (para 531) 209 Ibid, page 767 (para 574) 118 PART I or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the rule of law.

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime… It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter… The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Informational privacy was the core issue in NASA v Nelson266 (2011). The Court held unanimously that NASA’s background checks of contract employees did not violate any constitutional privacy right. The employees had argued that their constitutional right to privacy as envisaged in previous US Supreme Court judgments namely Whalen v Roe267 (1977) and Nixon v Administrator of General Services268 (1977), 264 539 US 558 (2003) 265 478 US 186 (1986) 266 562 US 134 (2011) 267 429 US 589 (1977). In this case, for the first time, the Court explicitly recognized an individual’s interest in nondisclosure of information. The Court chose to address the status of privacy in the Constitution, underlining that the constitutional right to privacy remains largely undefined and then identified the types of constitutionally protected privacy interests as follows: “The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” 268 433 US 425 (1977). In this case, the former President of US, Nixon, was challenging the Presidential Recordings and Material Preservation Act, 1974 on the ground that it violated his right of privacy, as there would 158 PART K was violated by background checks. The majority judgment delivered by Justice Alito, decided the case assuming that there existed a constitutional right to privacy. The Court held that:

573 US __ (2014) 272 576 US __ (2015) 163 PART K “Indeed, the Court has noted it would be contradictory to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” (emphasis supplied) The development of the jurisprudence on the right to privacy in the United States of America shows that even though there is no explicit mention of the word ‘privacy’ in the Constitution, the courts of the country have not only recognised the right to privacy under various Amendments of the Constitution but also progressively extended the ambit of protection under the right to privacy. In its early years, the focus was on property and protection of physical spaces that would be considered private such as an individual’s home. This ‘trespass doctrine’ became irrelevant when it was held that what is protected under the right to privacy is “people, not places”. The ‘reasonable expectation of privacy’ test has been relied on subsequently by various other jurisdictions while developing the right to privacy. Having located the right to privacy in the ‘person’, American jurisprudence on the right to privacy has developed to shield various private aspects of a person’s life from interference by the state - such as conscience, education, personal information, communications and conversations, sexuality, marriage, procreation, contraception, individual beliefs, thoughts and emotions, political and other social groups. Various judgments of the Court have also analysed technological developments which have made surveillance more pervasive and affecting citizens’ privacy. In all these cases, the Court has tried to balance the interests of the individual in maintaining the right to privacy with the interest of the State in maintaining law and order. Decisions of the Supreme Court decriminalizing 164 PART K consensual sexual activity between homosexuals and guaranteeing same-sex couples the right to marry indicate that the right to privacy is intrinsic to the constitutional guarantees of liberty and equal protection of laws.

horizontal axis consisting of four zones of privacy and a vertical axis which emphasises two aspects of freedom: the freedom to be let alone and the freedom for self-development. The nine primary types of privacy are, according to the above depiction: (i) bodily privacy which reflects the privacy of the physical body. Implicit in this is the negative freedom of being able to prevent others from violating one’s body or from restraining the freedom of bodily movement; (ii) spatial privacy which is reflected in the privacy of a private space through which access of others can be restricted to the space; intimate relations and family life are an apt illustration of spatial privacy; (iii) communicational privacy which is reflected in enabling an individual to 202 PART M restrict access to communications or control the use of information which is communicated to third parties; (iv) proprietary privacy which is reflected by the interest of a person in utilising property as a means to shield facts, things or information from others; (v) intellectual privacy which is reflected as an individual interest in the privacy of thought and mind and the development of opinions and beliefs; (vi) decisional privacy reflected by an ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations; (vii) associational privacy which is reflected in the ability of the individual to choose who she wishes to interact with; (viii) behavioural privacy which recognises the privacy interests of a person even while conducting publicly visible activities. Behavioural privacy postulates that even when access is granted to others, the individual is entitled to control the extent of access and preserve to herself a measure of freedom from unwanted intrusion; and (ix) informational privacy which reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information.

“There are two views on this point. One view is this; that the legislature may be trusted not to make any law which would abrogate the fundamental rights of man, so to say, the fundamental rights which apply to every individual, and consequently, there is no danger arising from the introduction of the phrase ‘due process’. Another view is this : that it is not possible to trust the legislature; the legislature is likely to err, is likely to be led away by passion, by party prejudice, by party considerations, and the legislature may make a law which may abrogate what may be regarded as the fundamental principles which safeguard the individual rights of a citizen. We are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that 361 Granville Austin (Supra note 358), at page 105 362 Ibid, at pages 105-106 363 Constituent Assembly Debates, Vol. 7 (13th December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p25a.htm 227 PART Q the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefor would not say anything. I would leave it to the House to decide in any way it likes.” The amendments proposed by some members to reintroduce ‘due process’ were rejected on 13 December 1948 and the phrase “due process of law” was deleted from the original draft Constitution. However, Article 22 was introduced into the Constitution to protect against arbitrary arrest and detention by incorporating several safeguards.

“…Article 21 purports to protect life and personal liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded. In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in this way that if the expression “procedure established by law” simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but if the word “law” includes what I have endeavoured to show it does, such an answer may be justified. It seems to me that there is nothing 229 PART Q revolutionary in the doctrine that the words “procedure established by law” must include the four principles set out in Professor Willis’ book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that “law” in this article means valid law and “procedure” means certain definite rules of proceeding and not something which is a mere pretence for procedure.”364 In Maneka, where the passport of the petitioner was impounded without furnishing reasons, a majority of judges found that the expression ‘procedure established by law’ did not mean any procedure howsoever arbitrary or fanciful. The procedure had to be fair, just and reasonable. The views of Justices Chandrachud, Bhagwati and Krishna Iyer emerge from the following brief extracts:

“These decisions have expanded the scope of Article 21 in a significant way and it is now too late in the day to contend that it is for the legislature to prescribe the procedure and for the courts to follow it; that it is for the legislature to provide the punishment and for the courts to impose it. Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21. Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws. But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable. The question which then arises before us is whether the sentence of death, prescribed by Section 303 of the Penal Code for the offence of murder committed by a person who is under a sentence of life imprisonment, is arbitrary and oppressive so as to be violative of the fundamental right conferred by Article 21.”376 (emphasis supplied) In A K Roy v Union of India377 , dealing with the question of preventive detention, a Constitution Bench of this Court adverted to the conscious decision in the Constituent 376 Ibid, at pages 284-285 (para 6) 377 (1982) 1 SCC 271 234 PART Q Assembly to delete the expression ‘due process of law’ from Article 21. The Court held that:

“From the above extract from McDowell & Co. case it is clear that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is “arbitrary” since such an exercise implies a value judgment and courts do not examine the wisdom of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of “substantive due process” employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. 380 (2014) 9 SCC 737 381 Ibid, at page 756 (para 28) 382 (2016) 2 SCC 445 236 PART Q Krishna v. State of Madras [1957 SCR 399] declared that the doctrine of due process has no application under the Indian Constitution. As pointed out by Frankfurter, J. arbitrariness became a mantra.”383 (emphasis supplied) The constitutional history surrounding the drafting of Article 21 contains an abundant reflection of a deliberate and studied decision of the Constituent Assembly to delete the expression ‘due process of law’ from the draft Constitution when the Constitution was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr B R Ambedkar had included the phrase but it came to be deleted after a careful evaluation of the vagaries of the decision making process in the US involving interpretation of the due process clause. Significantly, present to the mind of the framers of our Constitution was the invalidation of social welfare legislation in the US on the anvil of the due process clause on the ground that it violated the liberty of contract of men, women and children to offer themselves for work in a free market for labour. This model evidently did not appeal to those who opposed the incorporation of a similar phrase into the Indian Constitution.

“It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating 2005 (8) SCC 534 ; Bhanumati v. State of Uttar Pradesh , (2010) 12 SCC 1 ; K.T. Plantation Pvt. Ltd. v. State of Karnataka , (2011) 9 SCC 1 ; State of Madhya Pradesh v. Rakesh Kohli , (2012) 6 SCC 312 ; Namit Sharma v. Union of India , ( 2013) 1 SCC 745 385 R.K. Garg v. Union of India , (1981) 4 SCC 675; Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth , AIR 1984 SC 1543; State of Andhra Pradesh v. McDowell , (1996) 3 SCC 709 ; Union of India v. Azadi Bachao Andolan , (2004) 10 SCC 1 ; State of U.P. v. Jeet S. Bisht , (2007) 6 SCC 586 ; K.T. Plantation Pvt. Ltd. v. State of Karnataka , (2011) 9 SCC 1 ; Bangalore Development Authority v. The Air Craft Employees Cooperative Society Ltd. , 2012 (1) SCALE 646 386 (1952) SCR 597 239 PART Q such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit of their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.”387 (emphasis supplied)

Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet, it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others, individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society. Equally, the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community. This state of flux which represents a 245 PART S constant evolution of individual personhood in the relationship with the rest of society provides the rationale for reserving to the individual a zone of repose. The lives which individuals lead as members of society engender a reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives. For instance, an individual who possesses a plot of land may decide to build upon it subject to zoning regulations. If the building bye laws define the area upon which construction can be raised or the height of the boundary wall around the property, the right to privacy of the individual is conditioned by regulations designed to protect the interests of the community in planned spaces. Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation.

13. To embrace a rule that the text of the Constitution is the only material to be looked at to understand the purpose and scheme of the Constitution would not only be detrimental to liberties of SUBJECTS but could also render the administration of the State unduly cumbersome. Fortunately, this Court did not adopt such a rule of interpretation barring exceptions like Gopalan (supra) and ADM Jabalpur21. Else, this Court could not have found the freedom of press under Article 19(1)(a) and the other rights22 which were 21 ADM Jabalpur Vs. S.S. Shukla AIR 1976 SC 1207 22 Sakal Papers (P) Ltd. & Others etc. v. Union of India, AIR 1962 SC 305 at page 311 “Para 28. It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear that the right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19. The first decision of this Court in which this was recognized is Romesh Thapar v. State of Madras , AIR 1950 SC 124.. There, this Court held that 15 held to be flowing from the guarantee under Article 21. Romesh Thappar23 and Sakal Papers (supra) are the earliest acknowledgment by this Court of the existence of Constitution’s dark matter. The series of cases in which this Court subsequently perceived various rights in the expression ‘life’ in Article 21 is a resounding confirmation of such acknowledgment.

5. ....It was in Kharak Singh v. State of U.P. & Ors. 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' of 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. 25 R.C. Cooper, the minority view (in Kharak Singh) must be regarded as correct and the majority view must be held to be overruled. Consequently, it was held that any law which deprives any person of the liberty guaranteed under Article 21 must not only be just, fair and reasonable, but must also satisfy that it does not at the same time violate one or some of the other fundamental rights enumerated under Article 19 , by demonstrating that the law is strictly in compliance with one of the corresponding clauses 2 to 6 of Article 19.42

283-84, para 6) 26 “6…In Sunil Batra v. Delhi Administration , (1978) 4 SCC 494, while dealing with the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer J. said that though our Constitution did not have a “due process” clause as in the American Constitution; the same consequence ensued after the decisions in the Bank Nationalisation case ( 1970) 1 SCC 248, and Maneka Gandhi case (1978) 1 SCC 248.… In Bachan Singh ( Bachan Singh v. State of Punjab , (1980) 2 SCC 684) which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi, it will read to say that: (SCC p.730, para 136) “136. No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.” The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty.”5 5 Shri Rakesh Dwivedi has argued before us that in Maneka Gandhi (supra), Chandrachud, J. had, in paragraph 55 of the judgment, clearly stated that substantive due process is no part of the Constitution of India. He further argued that Krishna Iyer, J.’s statement in Sunil Batra (supra) that a due process clause as contained in the U.S. Constitution is now to be read into Article 21 , is a standalone statement of the law and that “substantive due process” is an expression which brings in its wake concepts which do not fit into the Constitution of India. It is not possible to accept this contention for the reason that in the Constitution Bench decision in Mithu (supra), Chandrachud, C.J., did not refer to his concurring judgment in Maneka Gandhi (supra), but instead referred, with approval, to Krishna Iyer, J.’s statement of the law in paragraph 6. It is this statement that is reproduced in paragraph 28 of Mohd. Arif (supra). Also, “substantive due process” in our context only means that a law can be 27 (at pages 755-756)

45. The learned Attorney General then argued that between the right to life and the right to personal liberty, the former has 51 primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a fundamental right. Elaborating further, he stated that in a developing country where millions of people are denied the basic necessities of life and do not even have shelter, food, clothing or jobs, no claim to a right to privacy as a fundamental right would lie. First and foremost, we do not find any conflict between the right to life and the right to personal liberty. Both rights are natural and inalienable rights of every human being and are required in order to develop his/her personality to the fullest. Indeed, the right to life and the right to personal liberty go hand-in-hand, with the right to personal liberty being an extension of the right to life. A large number of poor people that Shri Venugopal talks about are persons who in today’s completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the Government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context. It seems to us that this argument is made through the prism of the Aadhar (Targeted Delivery of 52 Financial and other Subsidies, Benefits and Services) Act, 2016, by which the Aadhar card is the means to see that various beneficial schemes of the Government filter down to persons for whom such schemes are intended. This 9-Judge Bench has not been constituted to look into the constitutional validity of the Aadhar Act, but it has been constituted to consider a much larger question, namely, that the right of privacy would be found, inter alia, in Article 21 in both “life” and “personal liberty” by rich and poor alike primarily against State action. This argument again does not impress us and is rejected.

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