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Questions to be dealt:

1. Whether there is any fr to privacy


2. Where is it located
3. What contors?
The uoi and respondents contend that

Gobind case: that it worked on the general assumption that if rtp is a fr then it shall
not be absolute the question wasnt dealt with it in entity.

Mp sharma case:
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.
The text of the constitution is only the primary source for understanding the constitution
and the silences of the constitution are also to be ascertained to understand the
constitution.
So in the mp sharma case we see that it doesnt contemplate the possibility of including
privacy as a fr nor does it speak anything of it. This is especiaaly more imp as in the gopalan
era the fr were considered strict compartments and there was no maneka Gandhi
interpretation of rights hence it only dealt with article 20(3), whether rtp is their in any
other fr like 21 14 19 25 is not been examined in m.p. sharma.
The question whether a fundamental right of privacy is implied from these Articles, is
therefore, res integra and M.P. Sharma is no authority on that aspect.
therefore, of the opinion that M.P. Sharma is not an authority for an absolute proposition
that there is no right of privacy under our Constitution

kharak singh
the majority opined that while including the right to move freely or
certain freedoms in art19(1) the makers of the consti. Excluded those
freedoms from the expression liberty in art21.
The minority opined that both the freedoms enumerated in
Article 19(1) and 21 are independent fundamental rights,
though there is overlapping

the case decided on survillence and domiciliary visits at night.


Majority took the view that the impugned regulation insofar
as it provided for domiciliary visits at night is
unconstitutional under art 21.
the court examined the scope of art 21 personal liberty
is used in the Article as 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 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 court referred to the wolf v. clorado case where right to


privacy was referred in reference to amendemt 4 which is
absent in our constitution. Nonetheless the conclusion was
drawn via the English maxim of every mans house is his
castle in substance domiciary visits violate liberty under
article 21.
The twin conclusion
1. that Article 21 takes within its sweep various rights
other than mere freedom from physical restraint.
Although in the gopalan case it was held that the
expression personal liberty is only the antithesis of
physical restrain.
2. domiciliary visits by police violate the right of Kharak
Singh guaranteed under Article 21, are a great leap
from the law declared by this Court in Gopalan

the logical inconsistency is that while on one hand it was opine dthat the maxim every
mans house is his castle is a part of liberty under art21.
On the other hand, to say that the right to privacy cannot be claimed under the Indian
constitution for the lack of any provision similar to the amd4 of the us consti.
The lordhips noticed that the English maxin itself is responsible for the amd4 of us
conti. And at the same time refuses to accept the rtp into art 21 for the reason of lack
of amd4 when the same maxim has been used to prove domiciary visits violates art21.
The interpretative argument
During the course it has been explained with examples that even tho we do not have
any provision similar to the amd4 of the consti. Still we have to interpret the meaning
from the constitution like we did for freedom of press etc. to say that right to privacy
is not a fundamental right just becoz it is not featured in the constitution would be
wrong as written constitutions cannot be interpreted literally and instead an
expansive approach has to be taken.

The 6amd us consti. Confers a right to speedy and public trial to the accused and various
other irghts such as the
right to be informed of the nature and cause of
the accusation, the right to have the assistance of counsel for his
defence etc. None of those rights are expressed in the text of
our Constitution. Nonetheless, this Court declared these
rights as implicit in the text of Articles 14 or 21
Similarly, the 8th amd of the American consti. Contains stipulations prohibiting excessive
bails fines etc.

None of the rights that have been inferred from the text of the constitution cannot be found
anywhere in the text of the constitution. To
sanctify an argument that
whatever is not found in the text of the Constitution cannot
become a part of the Constitution would be too primitive an
understanding of the Constitution and contrary to settled
cannons of constitutional interpretation.
If the text of the constitution is silent in this regard then it is
required to examine whether such a right is implied in any
one or more of the fundamental rights in the text of the
constitution.
The international treaties and conventions with court of
other countries, dealing with the claims of right to
privacy.
The earliest cases where the constitutionality of states
action allegedly infringing the right to privacy fell for the
consideration of the US Supreme Court: Griswold et al
Connecticut
To disregard the right to privacy becoz there is
definitional uncertainty:
It cannot be done it is sufficient to go by the understanding
that the right to privacy consists of three facets. Each of
these facets is so essential for the liberty of human beings
that we should see no reason to doubt that the right to
privacy is part of the liberty by our constitution.

Each of these facets is so essential for the liberty of human


beings that I see no reason to doubt that the right to privacy
is part of the liberty guaranteed by our Constitution.
Right to livelihood under oleum pollis case is also
Aspects under right to privacy:
Forced feeding of certain persons by the state is privacy
An individuals right to refuse life prolonging medical
treatment or terminate his life is another freedom under
privacy
A womans freedom of choice whether to bear a child or
abort her pregnancy are areas which fall in the realm of
privacy
Telephoning tapping and internet hacking is another area
which falls within the realm of privacy. The instant
reference arises out of such an attempt by the Union of India
to collect bio-metric data regarding all the residents of this
country.
Fundamental rights are the only constitutional firewall to
prevent States interference with those core freedoms
constituting liberty of a human being. The right to privacy is
certainly one of the core freedoms which is to be defended.
It is part of liberty within the meaning of that expression in
Article 21.

The limitations to right to privacy:

A fr to privacy has limitations,


1. the options canvassed include an art 14 type
reasonableness enquiry.
2. Limitation as per the art19; a just fair and reasonable
basis.
3. A just fair and reasonable standard per art 21.
4. Compelling state interest.

The possibility of a privacy claim being entirely


traceable to rights other than art.21 is bleak
If the spirit of liberty permeates every claim of privacy, it is
difficult if not impossible to imagine that any standard of
limitation, other than the one under Article 21 applies as a
result the limitation in the case of right to privacy shall arise
only from (3) and (4)
S.A. BOBDE.J.

IT ARISES IN THE CONEXT OF A CONSTITUTIONAL CHALLENGE TO THE AADHAR


PROJECT

Petitioners: aadhar violates their right to privacy

Respondent: Indians could not claim this right.(m.p sharma case and kharak singh )

The respondents made it clear that the matter here is been refered to the bench which
was with the aadhar case, and since it raised far reaching questions of importance
involving interpretation of the conti.
If observations of mp shrma and kharak singh are to be read literally and accepted as
the law of this country, the FR guaranteed under the conti. And more particularily
art21. Would be denuded of the vigour and vitality.
At the same time we believe that the pronouncement made by the larger benches
cannot be ignored by the smaller benches without appropriately explaining the
reasons for not following the pronouncements made by such larger benches.
Controversy: the raio of MP sharma and Kharak singh is to be scrutinized and the
jurisprudential correctness of the subsequent decisions of this court relating to right to
privacy be examined and decided by a bench of appropriate strength.
To google the names of these and their opinion on right to privacy: Shri
Soli
Sorabjee, Shri Gopal Subramanium, Shri Shyam
Divan, Shri Arvind Datar, Shri Anand Grover, Shri
Sajan Poovayya, Ms. Meenakshi Arora, Shri Kapil
Sibal, Shri P.V. Surendranath and Ms. Aishwarya
Bhati
Effect of m.p. sharma and kharak singh :
This issue of privacy did not fell before the 8 judge bench in mp sharma.
Using the same reasoning that the constituent assembly chose not to subject laws
providing for search and seizure to constitutional limitations.
1. Mp sharma is unconvincing because it arrived at it conclusion without enquiry
into whether a right to privacy could exist in our constitution on an independent
footing or not, but becoz it wrongly took the us 4amd which in itself is not
absolute.
2. Kharak singh case:

It acknowledged that tho theres no clear expression in our consti. Like the uss 4th
amd but an unauthorised intrusion into a persons home and the disturbance
caused to him thereby is violation of an ultimate essential of ordered liberty.
Court aslo cited semaynes case that the house of everyone is to him as his castle
and fortress as well as for his defence against injury.
This the bench said transcends mere protection of property rights and expounds a
concept of personal liberty under art21.

The supreme court at that time did not have the advantage of two
interpretative tools.
1. R.c cooper v uoi
2. Maneka Gandhi case.
It held that the interpretation of the FR requires us to read part 3s
guarantees or rights together. It recognised the overlapping of two or more
FR
However, during the m.p sharma case AK GOpalna case interpretation
model said that such should take place in separate silos or compartments.
Mp sharma pre supposes and predates the practice of judicial enumeration
of rights implicit in a gurantee instantiated in the text of consti. there
is a whole host of rights that this court has
derived from Article 21 to evidence that
enumeration is a well-embedded
interpretative practice in constitutional law.
And the same can be done with right to
privacy.
Therefore, nothing in mp sharma and
kharak singh supports that there is no
fundamental right to privacy
The new interpretative tools have made a shift in our understanding of the
nature and location of various FR in part3 which have been brought by rc
cooper and maneka Gandhi which have removed the foundation of mp
sharma and kharak singh
petitioners submitted that decisions numbering atleast 30
beginning with mathews, j.s full-throated
acknowledgement of the existence and value of a legal
12
concept of privacy in gobind v. state of m.p. form an
unbroken line of cases that affirms the existence of a
constitutional right to privacy. in view of the foregoing, this
view should be accepted as correct.
Thus first that the cases decided by the larger benches like mp sharma and
kharak singh cannot be taken as basis for considering the right to privacy
after the post-maneka Gandhi era.

-------------x---------------------------------------------------x----------------------------------------x----

to put it as a common law rights rather than a fundamental right:

privacy is defined as a natural right intimately


connected to two
values whose protection is a matter of universal moral
agreement: the innate dignity and autonomy of man.
Semaynes case16, in which it was affirmed that a mans
home is his castle and that even the law may only
enter it with warrant, clearly shows that elements of
the natural right of privacy began to be received into
the common law as early as in 1604

According to the peoples union of civil liberties v. uoi it has been reaffirmed that
the objective of part3 is to place citizens at centre stage and make the state
accountable to them.
In society for unaided private schools of rj v.. uoi it was held that FR have two
aspects, 1. They act as fetter on plenary legislative powers and 2. They provide
conditions for fuller development our people including their indivi dignity.
The expansive character of any right central to consti democracies like
ours has nowhere stood in the way of recognising a right which has strong
consti grounds.

The existence of privacy is felt instinctively by all civilised people without exception. The
best evidence for this proposition lies in the panoply of
activities through which we all express claims to
privacy in our daily lives. We lock our doors, clothe our
bodies and set passwords to our computers and phones
to signal that we intend for our places, persons and
virtual lives to be private
The right of privacy has its foundation in the
instincts of nature. It is recognized
intuitively, consciousness being the witness
that can be called to establish its existence.
Any person whose intellect is in a normal
condition recognizes at once that as to each
individual member of society there are
matters private and there are matters public
so far as the individual is concerned. Each
individual as instinctively resents any
encroachment by the public upon his rights
which are of a private nature as he does the
withdrawal of those of his rights which are
of a public nature22
the right to be in this condition has been described as the right to be let
alone.
The ancient or historic view of te RTP
even in ancient and religious texts of india, a well-developed sense of
privacy is evident.

A woman ought not to be seen by a male


Examples:
stranger seems to be a well-established rule in the
Ramayana. Grihya Sutras prescribe the manner in which
one ought to build ones house in order to protect the
privacy of its inmates and preserve its sanctity during
the performance of religious rites, or when studying the
Vedas or taking meals. The Arthashastra prohibits entry
into anothers house, without the owners consent27.
There is still a denomination known as the Ramanuj
Sampradaya in southern India, members of which
continue to observe the practice of not eating and
drinking in the presence of anyone else.
in Islam, peeping into others houses is strictly
prohibited28. Just as the United States Fourth
Amendment guarantees privacy in ones papers and
personal effects, the Hadith makes it reprehensible to
read correspondence between others. In Christianity,
we find the aspiration to live without interfering in the
affairs of others in the text of the Bible29
religious and social customs affirming privacy aslo find acknowledgment in our laws.

The inability to create a condition of selective seclusion virtually denies an individual the
freedom to exercise that particular liberty or freedom necessary to do that activity.

The privacy connection to dignity and liberty:


the privacy is the basic condition which is required to enjoy other rights
mentioned under the constitution.
The normative argument:
The normative case for privacy is very simple nature has clothed us with dignity and
liberty so that we may be free to do what he will consistent with the freedom of
another and to develop his faculties to the fullest measure to live with dignity and
happiness.
Privacy is the necessary condition of the exercise of other fundamental rights:
Art21:

The first and natural home for a right of privacy is in


Article 21 at the very heart of personal liberty and life
itself. Liberty and privacy are integrally connected in a
way that privacy is often the basic condition necessary
for exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of
being performed at all and in many cases with dignity
unless an individual is left alone or is otherwise
empowered to ensure his or her privacy. Birth and
death are events when privacy is required for ensuring
dignity amongst all civilized people. Privacy is thus one
of those rights instrumentally required if one is to
enjoy33 rights specified and enumerated in the
constitutional text.

The court in te sunil batra vs delhi administration case held that life must mean
something more than mere animal existence.
In the case of frnacis coralie mullin the court has viewed liberty as closely linked to
dignity.
It has been identified that the term life include in it the right to use the different
faculties used to enjoy the right to life.

Privacy is therefore necessary in both its mental and


physical aspects as an enabler of guaranteed
freedoms.

Dignity:
It is difficult to see how dignity- which has constitutional provisions under preamble
and art21 can be assured to the individual without privacy.
The right of privacy is an integral part of both life and personal liberty under art21.
Art19:
It acts as the spring board for freedoms under art19.
1. Freedom of speech and expression:
Freedom of speech and expression is always
dependent on the capacity to think, read and
write in private and is often exercised in a state
of privacy, to the exclusion of those not intended
to be spoken to or communicated with.
2. Peaceful assembly:
3. A peaceful assembly requires the exclusion of
elements who may not be peaceful or who may
have a
4. different agenda. The freedom to associate must
necessarily be the
5. freedom to associate with those of ones choice
and those with common objectives.
6. Matters of residence and settlement:
7. Trade and commerce rights:
8. it is not possible to conceive of an individual
being able to practice a profession or carry on
trade, business or occupation without the right
to privacy in practical terms and without the
right and power to keep others away from his
work.
9. Privacy is the essential to the exercise of freedom of conscience and the right to
profess, practice n propagate religion vide art25.
10. Right to administer religious and chairtable: art 26 requires privacy, in the sense
of non-interference from the state.
expressly recognizes the right of a student
11. Art28(3)
attending an educational institution recognized
by the state, to be left alone.
12. The right of privacy is also integral to the
cultural and educational rights whereby a group
having a distinct language, script or culture shall
have the right to conserve the same.
13. Thus right to privacy is very much inherent in the enjoyment of freedoms under
art19.

Privacy is the necessary condition precedent to the enjoyment of ny of the guarantees in


part3.hence it
is claimed by rights bearers before
constitutional courts, a right to privacy may be situated
not only in Article 21, but also simultaneously in any of
the other guarantees in Part III. In the current state of
things, Articles 19(1), 20(3), 25, 28 and 29 are all
rights helped up and made meaningful by the exercise
of privacy.
Any derecognition or diminution in the importance of
the right to privacy will weaken the FR which have
been expressly conferred. Not recognising the RTP will
erode the very sub-stratum of the personal liberty
guaranteed by the constitution.

14. Judicial enumeration of the FR to privacy:


15. Nothing unusual in the judicial enumeration of one right from another.
16. True becoz of salmonds theory of incipient rights. The SC overtime has been able
to imply by its interpretative process, that several FR including right to privacy
emerge out from expressly stated FR. ----Unni Krishnan,n.p. vs St. of A.P.
17. held that several unenumerated rights fall within Article
21 since personal liberty is of widest amplitude40 on the
way to affirming the existence of a right to
education.
18. It went on to supply the following indicative list
of such rights, which included the right to
privacy
19. The right to go abroad
20. The right to privacy. Gobind v. State of M.P..,
(1975)2 SCC 148. In this case reliance was
placed on the American decision in Griswold v.
Connecticut, 381 US 479 at 510.
21. 3. The right against solitary confinement
22. The right against bar fetters
23. the case for judicial enumeration is especially
strong. It is no doubt a fair implication from
Article 21, but also more.
24. privacy is more than merely a derivative
constitutional right. It is the necessary and
unavoidable logical entailment of rights
guaranteed in the text of the constitution.
25. Not recognizing character of privacy as a
fundamental right is likely to erode the very sub-
stratum of the personal liberty guaranteed by
the constitution. The decided cases clearly
demonstrate that particular fundamental rights
could not have been exercised without the
recognition of the right of privacy as a
fundamental right. Any derecognition or
diminution in the importance of the right of
privacy will weaken the fundamental rights
which have been expressly conferred.
Three arguments form the union and state is been dealt with expressly in the
following manner:

1. Apprehension that the recognition pf privacy would create complications for the state
in its exercise of powers.
This is not well founded the declaration of rights cannt be restricted or stopped where
there is good constitutional ground for doing so.
It is only after acknowledging such RTP as a Fr that we can look how it affects the
plenary powers of the state.

In any event, the state can always legislate a reasonable restriction to protect and effectuate a
compelling state interest. There
is no warrant for the assumption
or for the conclusion that the fundamental right to
privacy is an absolute right which cannot be reasonably
restricted given a sufficiently compelling state interest.

2. That there are various other statues which independently protect the right to privacy
there is no need to recognize privacy as a FR.

Ans. Thisargument cannot be accepted any more in the


context of a fundamental right to privacy than in the
context of any other fundamental right. Several
legislations protect and advance fundamental rights,
but their existence does not make the existence of a
corresponding fundamental right redundant.
This is obviously so because legislations are alterable
and even repealable unlike fundamental rights, which,
by design, endure.

3. Shri Rakesh Dwivedi, appearing for the State of


Gujarat, while referring to several judgments of
the Supreme Court of the United States, submitted
that only those privacy claims which involve a
reasonable expectation of privacy be recognized
as protected by the fundamental right. It is not
necessary for the purpose of this case to deal with
the particular instances of privacy claims which are
to be recognized as implicating a fundamental
right. Indeed, it would be premature to do. The
scope and ambit of a constitutional protection of
privacy can only be revealed to us on a case-by-
case basis.
THE TEST FOR PRIVACY:
Not able to understand!
Standard of review of privacy violations:
No doubt that the right to privacy is integral to the several FR recognised by part3 and
must be regarded as FR. But at a min, since privacy is always integral with personal
liberty the constitutionality of law which is alleged ot have violated art21 must be
tested by the same standard by whuch a law under art21 is liable to be tested.
The test under art21 is the rationality view taken by the SC under the Maneka Gandhi
case. This requires that any restriction on right to privacy must be just fair and
reasonable and not fanciful or arbitrary.
Once its integration is est with other FR then it has to fulfil their tests as well.
Privacy violation will usually have to answer to tests in addition to art21 that will be
supportive of what was said in the RC cooper case.

JUSTICE NARIMAN:
Petitioners alleged that the judgements of mp sharma and kharak singh must
be overruled as they do not reflect the correct position in law.
Both judgements have relied upon the doctrine of interpretation in line to the
Gopalan case and that doctrine has been overruled by the RC cooper case and
maneka Gandhi case.so they cease to have relevance now after vastly changed
circumstances of today.
They contend that the right to privacy is found in art 14,19,20,21and 25 read
with the preamble of the consti.
International covernants need to be read into the FR chapter of the consti.
The RTp should evolve on a case to case basis.
Being a fundamental human right it should only yield to state action if such
action is compelling
RTP is not conferred but only recognised as such by the consti.
The state action which violates the RTP should have the following elements:
The action must be sanctioned by law;

The proposed action must be necessary in a


democratic society for a legitimate aim;
6

The extent of such interference must be


proportionate to the need for such interference;

There must be procedural guarantees against


abuse of such interference.

That the founding fathers expressly rejected the RTP eing made part of the Fr ch of
the consti.
Privacy is a common law right and all aspects of privacy do not elevate themselves
into being a FR.
The RTP can only be one o=among the several varied rights under the umbrella of the
right to personal liberty. That the right to life stands above the right to personal
liberty, and any claim to privacy which could destroy or erode this basic foundational
right can never be elevated as a FR.
the right to privacy cannot be claimed when most
of the aspects which are sought to be protected by
such right are already in the public domain and the
information in question has already been parted
with by citizens.
privacy is an inherently vague and subjective
concept and cannot, therefore, be accorded the
status of a fundamental right. Further, codified
statutory law in India already confers protection to
the individuals right to privacy.
the position under English Law is that there is no
common law right to privacy. He cited before us

examples of other countries in the world where


privacy is protected by legislation and not by or
under the Constitution.

the counsel for Gujrat declared that both have taken


extreme positions.
has argued that both the petitioners as
well as the learned Attorney General have taken
extreme
positions. According to him, the petitioners state that in
the
case of every invasion of a privacy right, howsoever
trivial, the
fundamental right to privacy gets attracted, whereas
according
to the learned Attorney General, there is no
fundamental right
to privacy at all.

That individual choice of parting with the knowledge in order to avail a benefit that it
could be said that they have no reasonable expectation of privacy as they have
voluntarily parted and free with such info.
Also only specialised data if parted with would require protection.
Even the USA doesnt use the right to privacy to etst the laws that were earlier tested
on this ground
Any right to privacy is conceptually unsound and only comprehensive data protection
legislation can effectively address concerns of data protection nd privacy.
Early views on privacy:
Semaynes case

enter a mans house by


Same was said in the huckle v. money To
virtue of a nameless warrant, in order to procure
evidence is worse than the Spanish Inquisition, a law
under which no Englishman would wish to live an
hour.
Entick v. Carrington illegal
search warrant was subversive of
all the comforts of society
Da Costa v. Jones, 98 ER 1331 (1778), Lord
Mansfield upheld the privacy of a third person
when such privacy was the subject matter of a
wager, which was injurious to the reputation of
such third person.
Such wager which violated the privacy of a third
person was held to be injurious to the reputation of
the third person for which damages were awarded
to the third person.
Article by Samuel d warren and Louis d brandeis. THAT
the individual shall
have full protection in person and in property is a
principle as old as the common law; but it has been
found necessary from time to time to define anew the
exact nature and extent of such protection. Political,
social, and economic changes entail the recognition of
new rights, and the common law, in its eternal youth,
grows to meet the demands of society. Thus, in very
early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et
armis. Then the right to life served only to protect the
subject from battery in its various forms; liberty meant
freedom from actual restraint; and the right to property
secured to the individual his lands and his cattle. Later,
there came a recognition of mans spiritual nature, of
his feelings and his intellect. Gradually the scope of
these legal rights broadened; and now the right to life
has come to mean the right to enjoy life, the right to
be let alone; the right to liberty secures the exercise of
extensive civil privileges; and the term property has
grown to comprise every form of possession
intangible, as well as tangible
It spoke of the right to be let alone.
Limitations and damages for the same were also discussed.
The right of privacy as expounded in this article
did not explore the ramifications of the said right
as against State action, but only explored
invasions of this right by private persons.
THE THREE DISENTS:
this covers the dissenting opinions of fazl ali---ak gopalan , subba rao---and Khanna.

Charles evans highes delivered a set of 6 lectures the text can be quoted as follows: A
dissent in a court of last resort is an appeal to the
brooding spirit of the law, to the intelligence of a future
day, when a later decision may possibly correct the
error into which the dissenting judge believes the court
to have been betrayed
justice fazl ali spoke of overlapping of FR To
my mind, the scheme of
the Chapter dealing with the fundamental rights does
not contemplate what is attributed to it, namely, that
each article is a code by itself and is independent of
the others. In my opinion, it cannot be said that articles
19, 20, 21 and 22 do not to some extent overlap each
other.
as his vision that fundamental rights are not in
distinct watertight compartments but do overlap, it
took twenty years for
this Court to realize how correct he was, and in
R.C. Cooper (supra), an 11-Judge Bench of this
Court, agreeing with Fazl Ali, J
not able to understand the dissent of fazl ali full
2. Dissent of subba rao in Kharak singh
in that case the regulation contained various provisions one of which, domiciary vists
at night, was struct down by all judges but subba rao and shah.j struck out the entire
regulation as violating the individuals right to privacy.
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.
In the mp sharma case
The issue was of search and seizure of docuents, this was alleged by the party as self-
incriminating as the documents were to be submitted by the party against himself and
therefore contradicts art20(3).
It was concluded that it is not as there is no basis in the law for the assumption that
the search of a thing or document is in itself be treated as complled production of the
same. A notice to produce such documents is not to the party himself but t0 the officer
and hence another party.
The attention was then raised to prov regarding search and seizures of documents.
It was observed that there exist no similar provision in the indian constitution as the
4th amendment of the us consti. But it follows from the English maxim meaning that
the home of every individual is his castle.
In this view the regulations under the kharak singh case was overthrown.
1. The case suffers from internal inconsistencies and the same cannot be given much
value as a precedent.
2. The majority is very right in holding the domiciary visits as unconstitutional under
art21 however where it goes wrong is when it says that FR are in watertight
compartments and that RTP is not under part3.
3. It can be seen that the majority judgement is like the proverbial curates egg- good
only in parts.
4. When the good parts alone are seen, there is no real difference between Subba Rao in
the dissenting opinion.
5. This anwers to the major part of this case that these two cases cannot be considered as
coming in way of reading the Fr to privacy into part3.
6. It may be right to say that the constituent assembly debates do reflect the minds
of the framers and the same was seen not accepting the right to privacy into part3
however our judegment expressly recognize that the consti. Governs the lives of
all Indians aand must be interpreted to respond to the changing needs of society
at different points in time.
6.1. The phrase due process was distinctly avoided by the framers of the consti. And
replaced by the colourless expression procedure est by law. Despite this maneka
Gandhi followed by a no. of judgements have read what was expressly rejected by
the framers into art21, so that by the time of mofd. Arif this ocurt was able to say that
the wheel has turned full circle and due process is now a part and parcel of art21.
6.2. Given the technological revolution of the later part
of the 20th century and the completely altered lives
that almost every citizen of this country leads,
thanks to this revolution, the right to privacy has to
be judged in todays context and not yesterdays.
This argument, therefore, need not detain us.
7. That of the two the right to life has primacy over the right to liberty and that no other
aspect in contravention to the right to life can be added to the right to liberty.any claim
to privacy which would erode or destroy this basic foundational right can never be
elevated to the status of a fundamental right.
7.1. First of all we do not find any conflict between the right to life and the right to
personal liberty.
7.2. 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.
7.3. To say that there are millions of people who are denied the basic necessities of life
and do not even have shelter, food etc. no claim to a right to privacy as a FR would
lie:
7.4. Ans. This argument is made for debating aadhaar act and not relevant before this
court, which considers a much larger question that the right to privacy would be
found in art21, bot by the rich and the poor alike primarily against stateaction.
8. the right to privacy is so vague and amorphous
9. a concept that it cannot be held to be a
fundamental right. This
10. again need not detain us. Mere absence of a
definition which
11. would encompass the many contours of the right to
privacy
12. need not deter us from recognizing privacy
interests when we
13. see them. As this judgment will presently show,
these interests
14. are broadly classified into interests pertaining to
the physical
15. realm and interests pertaining to the mind
15.1.
16. that the info has been voluntarily been parted :
16.1. dealt in the judgement in miller v. united states.
16.2. The SC in CANARA bank case referred to the criticism
16.3. Court went to the old theory of privacy of person and not property. He
observes that the majprity confused between privacy and secrecy. Even a secret
remains a secret even when shared with those whom one selects for onesconfidence.
16.4. To say that one must take the bitter pill to exact a high constitutional price
indeed for living in contemporary societyis not sorrect.
17. That rights have to be traced directly to those expressly stated in the FR chapter of the
consti. For such rights to receive protetction, and pirvacy is not one of them

It will be noticed that the dignity of the individual


17.1.
is a cardinal value, which is expressed in the
Preamble to the Constitution. Such dignity is not
expressly stated as a right in the fundamental rights
chapter, but has been read into the right to life and
personal liberty. The right to live with dignity is
expressly read into Article 21 by the judgment in
Jolly George Varghese v. Bank of Cochin,
17.2. the
right against bar fetters and handcuffing being
integral to an individuals dignity was read into Article
21 by the judgment in Charles Sobraj v. Delhi
Administration, It is too late in the day to canvas that
a fundamental right must be traceable to express
language in Part III of the Constitution.
17.3.a Constitution has to be read in such a way that
words deliver up principles that are to be followed and
if this is kept in mind, it is clear that the concept of
privacy is contained not merely in personal liberty, but
also in the dignity of the individual.
17.4. example of STANLEY v. GEORGIA

18.