Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
S.A. Bobde, J. :
415. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the
guarantees in Part III. As a result, when 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. This is not an exhaustive list. Future
developments in technology and social ordering may well reveal that there are yet more
constitutional sites in which a privacy right inheres that are not at present evident to us. R.F.
Nariman, J. :
521. In the Indian context, a fundamental right to privacy would cover at least the following three
aspects:
Privacy that involves the person i.e. when there is some invasion by the State of a
person's rights relatable to his physical body, such as the right to move freely;
Informational privacy which does not deal with a person's body but deals with a
person's mind, and therefore recognises that an individual may have control over the
dissemination of material that is personal to him. Unauthorised use of such
information may, therefore lead to infringement of this right; and The privacy of
choice, which protects an individual's autonomy over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and
(e) read with Article 21; ground personal information privacy under Article 21; and the privacy of
choice in Articles 19(1)(a) to
(c), 20(3), 21 and 25. The argument based on privacy being a vague and nebulous concept need not,
therefore, detain us.
xx xx xx
532. The learned counsel for the petitioners also referred to another important aspect of the right to
privacy. According to the learned counsel for the petitioner this right is a natural law right which is
inalienable. Indeed, the reference order itself, in para 12, refers to this aspect of the fundamental
right contained. It was, therefore, argued before us that given the international conventions referred
to hereinabove and the fact that this right inheres in every individual by virtue of his being a human
being, such right is not conferred by the Constitution but is only recognised and given the status of
being fundamental. There is no doubt that the petitioners are correct in this submission. However,
one important roadblock in the way needs to be got over.
533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution Bench of this Court arrived at the
conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty,
and, when suspended, takes away those rights altogether. A remarkable dissent was that of Khanna,
Indian Kanoon - http://indiankanoon.org/doc/127517806/
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