Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
pass muster. In the ultimate analysis, the balancing act that is to be carried out between individual,
societal and State interests must be left to the training and expertise of the judicial mind.
S.K. Kaul, J. :
638. The concerns expressed on behalf of the petitioners arising from the possibility of the State
infringing the right to privacy can be met by the test suggested for limiting the discretion of the
State:
(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference. Chelameswar, J.:
377. It goes without saying that no legal right can be absolute. Every right has limitations. This
aspect of the matter is conceded at the Bar. Therefore, even a fundamental right to privacy has
limitations. The limitations are to be identified on case-to-case basis depending upon the nature of
the privacy interest claimed. There are different standards of review to test infractions of
fundamental rights. While the concept of reasonableness overarches Part III, it operates differently
across Articles (even if only slightly differently across some of them). Having emphatically
interpreted the Constitution's liberty guarantee to contain a fundamental right to privacy, it is
necessary for me to outline the manner in which such a right to privacy can be limited. I only do this
to indicate the direction of the debate as the nature of limitation is not at issue here.
378. To begin with, the options canvassed for limiting the right to privacy include an Article 14 type
reasonableness enquiry [A challenge under Article 14 can be made if there is an unreasonable
classification and/or if the impugned measure is arbitrary. The classification is unreasonable if there
is no intelligible differentia justifying the classification and if the classification has no rational nexus
with the objective sought to be achieved. Arbitrariness, which was first explained at para 85 of E.P.
Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555, is very simply the
lack of any reasoning.] ; limitation as per the express provisions of Article 19; a just, fair and
reasonable basis (that is, substantive due process) for limitation per Article 21; and finally, a just,
fair and reasonable standard per Article 21 plus the amorphous standard of compelling State
interest. The last of these four options is the highest standard of scrutiny [ A tiered level of scrutiny
was indicated in what came to be known as the most famous footnote in constitutional law, that is,
fn 4 in United States v. Carolene Products Co., 1938 SCC OnLine US SC 93 : 82 L Ed 1234 : 304 US
144 (1938). Depending on the graveness of the right at stake, the court adopts a correspondingly
rigorous standard of scrutiny.] that a court can adopt. It is from this menu that a standard of review
for limiting the right to privacy needs to be chosen.
Indian Kanoon - http://indiankanoon.org/doc/127517806/
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