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Report No. 271

D. Right to privacy- Under Article 21 of the Constitution

4.25 The issue has been raised time and again whether right to privacy is a fundamental right guaranteed under the Constitution. If the answer is in the affirmative, then the source and the contours of such a right, in view of the fact that there is no provision in Constitution that expressly provides for a right to privacy, needs to be worked out. In M P Sharma v. Satish Chandra, 31 an eight-Judges Bench of the Supreme Court denied the existence of such a right while dealing with the case of search and seizure, observing:

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 American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.

4.26 Similarly, in Kharak Singh v. State of Uttar Pradesh,32 a six- Judges Bench reiterated a similar view observing:

Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by the learned counsel for the petitioner. .........., 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.

4.27 In Ram Jethmalani v. Union of India,33 Supreme Court dealt with the right of privacy elaborately and held as under: Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.... The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values.... The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

4.28 In R Rajagopal v. State of Tamil Nadu34, the Supreme Court held: The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family marriage, procreation, motherhood, child-bearing and education among other matters.

4.29 Similar view has been reiterated by the Court observing that right to privacy is a right of the citizen, being an integral part of Article 21 of the Constitution of India. Illegitimate intrusion into privacy of a person is not permissible as the right to privacy is implicit in the right to life and liberty guaranteed under our Constitution. However, right to privacy may not be absolute, as in exceptional circumstances, particularly, in case of surveillance in consonance with the statutory provisions reasonable restrictions may be imposed on such a right. (Vide: State of Maharashtra v. Madhukar Narayan Mardikar,35; Anuj Garg v. Hotel Association of India 36 ; Bhavesh Jayanti Lakhani v. State of Maharashtra37; and Selvi v. State of Karnataka38.)

4.30 "The Right to Privacy" by Charles Warren and Louis D. Brandeis.39 is a good starting point for a discussion on the legal concept privacy. The article opines that privacy or the right to be let alone, was an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. The right to privacy has also been held to be a fundamental right of the citizen by the apex Court in R. Rajagopal v. State of Tamil Nadu; 40 People's Union for Civil Liberties (PUCL) v. Union of India,41 Mr. 'X' v. Hospital 'Z';42 People's Union for Civil Liberties (PUCL) v. Union of India;43 and Sharda v. Dharmpal44.

4.31 In District Registrar and Collector, Hyderabad v. Canara Bank,45 the Supreme Court held that right to privacy is a personal right distinct from a right to property. Intrusions into it by the legislature, is to be tested on the touchstone of reasonableness and for that purpose the Court can go into the proportionality of the intrusion vis-a-vis the purpose, sought to be achieved as "right to privacy" is part of the right to life enshrined in Article 21 of the Constitution of India. While deciding the said case, the Court placed reliance upon a large number of its earlier judgments, including Maneka Gandhi v. Union of India46. The Court held that an illegitimate intrusion into privacy of a citizen is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under Article 21 of the Constitution.

4.32 In State of Maharashtra & Anr. v. Madhukar Narayan Mardikar 47 the Supreme Court observed that "even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes." However, such a right can be subject to restrictions when there are compelling questions of public interest48. Police can have surveillance on a person only in accordance with the rules framed for that purpose as right to privacy is not absolute49.

4.33 In Justice K S Puttaswamy (Retd.) v. Union of India, 50 the Supreme Court while dealing with the case of "Aadhar card" (UIDAI) observed that there have been contradictory judgments on the issue but the law laid down in M P Sharma51 and Kharak Singh52, if read literally and accepted as a law, the fundamental rights guaranteed under Article 21 would be denuded of vigour and vitality. The Court referred the matter to a larger bench for authoritative interpretation of law on the issue.

4.34 In the R.K. Dalmia v. Justice S.R. Tendolkar53, the Court held: that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;...

4.35 Further, the case of M. Nagaraj & Ors. v. Union of India & Ors.54 is referred to elucidate the concept of right to dignity in the following manner: ... 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.

4.36 While examining the constitutional validity of a law providing restrictions on fundamental rights, the proportionality of measures taken becomes relevant. The 'compelling State interest' is just one aspect of the broader 'strict scrutiny' test, which was applied by the Court in Anuj Garg v. Hotel Association of India 55 . The other essential facet is to demonstrate 'narrow tailoring', i.e., the State must demonstrate that even if a compelling interest exists, it has adopted a method that will infringe in the narrowest possible manner upon individual rights.

4.37 In the case of People's Union for Civil Liberties v. Union of India & Ors. 56 , the Court has endorsed bio-metric identification of homeless persons also so that benefits like supply of food and kerosene meant for persons who are Below Poverty Line reaches to the genuine persons.

4.38 In the case of Lokniti Foundation v. Union of India & Ors.,57 the Supreme Court disposed of the writ petition upon being satisfied that an effective process has been evolved to ensure identity verification and approved the Aadhar card based verification of existing and new mobile number subscribers.

4.39 In Binoy Viswam v. Union of India & Ors.58, the Supreme Court examined the validity of the provisions of section 139AA of the Income Tax Act, 1961, which provided for quoting of Aadhar Number with Permanent Account Number and held as under: that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld.

At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act.

4.40 Section 8(j) of the Right to Information, Act 2005 provides that disclosure of personal information which could cause unwarranted invasion of the privacy of the individual, cannot be furnished unless it is necessary in larger public interest.

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