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Date of order: August 24, 2017 Bench Strength: 9
Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value.
In substance, two questions were referred to this Nine Judge Bench, first, whether the law laid down in the case of M. P. Sharma v. Satish Chandra, District Magistrate Delhi [1954 SC] and Kharak Singh v. State of Uttar Pradesh [1963 SC] insofar as it relates to the “right to privacy of an individual” is correct and second, whether “right to privacy” is a fundamental right under Part III of the Constitution of India?
The most important place of pride was given to the “People of India” by using the expression, WE, THE PEOPLE OF INDIA, in the beginning of the Preamble. The Constitution was accordingly adopted, enacted and then given to ourselves.
The keynote of the Preamble was to lay emphasis on two positive aspects – one, “the Unity of the Nation” and the second “Dignity of the individual”. The expression “Dignity” carried with it moral and spiritual imports. It also implied an obligation on the part of the Union to respect the personality of every citizen and create the conditions in which every citizen would be left free to find himself/herself and attain self-fulfilment.
The incorporation of expression “Dignity of the individual” in the Preamble was aimed essentially to show explicit repudiation of what people of this Country had inherited from the past. Dignity of the individual was, therefore, always considered the prime constituent of the fraternity, which assures the dignity to every individual. Both expressions are interdependent and intertwined.
Unity and integrity of the Nation cannot survive unless the dignity of every individual citizen is guaranteed. It is inconceivable to think of unity and integration without the assurance to an individual to preserve his dignity. In other words, regard and respect by every individual for the dignity of the other one brings the unity and integrity of the Nation.
The expressions “liberty“, “equality” and “fraternity” incorporated in the Preamble are not separate entities. They have to be read in juxtaposition while dealing with the rights of the citizens. They, in fact, form a union. If these expressions are divorced from each other, it will defeat the very purpose of democracy.
In other words, liberty cannot be divorced from equality, so also equality cannot be divorced from liberty and nor can liberty and equality be divorced from fraternity. The meaning assigned to these expressions has to be given due weightage while interpreting Articles of Part III of the Constitution.
It is a settled rule of interpretation as held in the case of Rustom Cavasjee Cooper v. Union of India [1970 SC] that the Court should always make attempt to expand the reach and ambit of fundamental rights rather than to attenuate their meaning and the content by process of judicial construction. Similarly, it is also a settled principle of law laid down in Kesavananda Bharati v. State of Kerala [1973 SC] that the Preamble is a part of the Constitution and, therefore, while interpreting any provision of the Constitution or examining any constitutional issue or while determining the width or reach of any provision or when any ambiguity or obscurity is noticed in any provision, which needs to be clarified, or when the language admits of meaning more than one, Preamble to the Constitution may be relied on as a remedy for mischief or/and to find out the true meaning of the relevant provision as the case may be.
“Right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.
One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilized society governed by rule of law always recognizes in every human being and is under obligation to recognize such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed. It is, of course, subject to imposing certain reasonable restrictions keeping in view the social, moral and compelling public interest, which the State is entitled to impose by law.
“Right to privacy” is not defined in law except in dictionaries. The Courts, however, by process of judicial interpretation, has assigned meaning to this right in the context of specific issues involved on case-to-case basis.
The most popular meaning of “right to privacy” is “the right to be let alone”.
I, therefore, do not find any difficulty in tracing the “right to privacy“ emanating from the two expressions of the Preamble namely, “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual“ and also emanating from Article 19 (1)(a) which gives to every citizen “a freedom of speech and expression” and further emanating from Article 19(1)(d) which gives to every citizen “a right to move freely throughout the territory of India” and lastly, emanating from the expression “personal liberty” under Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them and in juxtaposition.
In view of foregoing discussion, my answer to question No. 2 is that “right to privacy” is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law.
[ABHAY MANOHAR SAPRE, J.]
Order of the Court
The reference is disposed of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.
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