RIGHT OF PERSONAL LIBERTYManeka Gandhi v. Union of India(1978) 1 SCC 248[MH Beg, CJ and YV Chandrachud, VR Krishna Iyer, PN Bhagwati, NL Untwalia, S Murtaza Faza Aliand PS Kailasam, JJ]

Case Summary

Full Case Details

P.N. BHAGWATI, J. – The petitioner is the holder of the passport issued to her on June 1,
1976 under the Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July
2, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided
by the Government of India to impound her passport under Section 10(3)(c) of the Act in
public interest and requiring her to surrender the passport within seven days from the date of
receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport
Officer requesting him to furnish a copy of the statement of reasons for making the order as
provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of
External Affairs on July 6, 1977 stating inter alia that the Government has decided “in the
interest of the general public” not to furnish her a copy of the statement of reasons for the
making of the order. The petitioner thereupon filed the present petition challenging the action
of the Government in impounding her passport and declining to give reasons for doing so.
The action of the Government was impugned inter alia on the ground that it was mala fide,
but this challenge was not pressed before us at the time of the hearing of the arguments and
hence it is not necessary to state any facts bearing on that question. The principal challenge
set out in the petition against the legality of the action of the Government was based mainly
on the ground that Section 10(3)(c), insofar as it empowers the Passport Authority to impound
a passport “in the interests of the general public” is violative of the equality clause contained
in Article 14 of the Constitution, since the condition denoted by the words “in the interests of
the general public” limiting the exercise of the power is vague and undefined and the power
conferred by this provision is, therefore, excessive and suffers from the vice of “overbreadth”. The petition also contained a challenge that an order under Section 10(3)(c)
impounding a passport could not be made by the Passport Authority without giving an
opportunity to the holder of the passport to be heard in defence and since in the present case,
the passport was impounded by the Government without affording an opportunity of hearing
to the petitioner, the order was null and void, and, in the alternative, if Section 10(3)(c) were
read in such a manner as to exclude the right of hearing, the section would be infected with
the vice of arbitrariness and it would be void as offending Article 14. These were the only
grounds taken in the petition as originally filed and on July 20, 1977 the petition was admitted
and rule issued by this Court and an interim order was made directing that the passport of the
petitioner should continue to remain deposited with the Registrar of this Court pending the
hearing and final disposal of the petition.

2. The hearing of the petition was fixed on August 30, 1977, but before that, the petitioner
   filed an application for urging additional grounds and by this application, two further grounds
   were sought to be urged by her. One ground was that Section 10(3)(r) is ultra vires Article 21
   since it provides for impounding of passport without any procedure as required by that article,
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   or, in any event, even if it could be said that there is some procedure prescribed under the
   Passports Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance
   with the requirement of that article. The other ground urged on behalf of the petitioner was
   that Section 10(3)(c) is violative of Articles 19(l)(a) and l9(l)(g) inasmuch as it authorises
   imposition of restrictions on freedom of speech and expression guaranteed under Article
   19(l)(a) and freedom to practise any profession or to carry on any occupation, or business
   guaranteed under Article 19(l)(g) and these restrictions are impermissible under Article 19(2)
   and Article 19(6) respectively. The application for urging these two additional grounds was
   granted by this Court and ultimately at the hearing of the petition these were the two principal
   grounds which were pressed on behalf of the petitioner.
3. Before we examine the rival arguments urged on behalf of the parties in regard to the
   various questions arising in this petition, it would be convenient to set out the relevant
   provisions of the Passports Act, 1967. The position which obtained prior to the coming into
   force of this Act was that there was no law regulating the issue of passports for leaving the
   shores of India and going abroad. The issue of passports was entirely within the discretion of
   the executive and this discretion was unguided and unchannelled. This Court, by a majority,
   held that the expression “personal liberty” in Article 21 takes in the right of locomotion and
   travel abroad and under Article 21 no person can be deprived of his right to go abroad except
   according to the procedure established by law and since no law had been made by the State
   regulating or prohibiting the exercise of such right, the refusal of passport was in violation of
   Article 21 and moreover the discretion with the executive in the matter of issuing or refusing
   passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the
   order refusing passport to the petitioner was also invalid under that article. This decision was
   accepted by Parliament and the infirmity pointed out by it was set right by the enactment of
   the Passports Act 1967. This Act, as its Preamble shows, was enacted to provide for the issue
   of passports and travel documents to regulate the departure from India of citizens of India and
   other persons and for incidental and ancillary matters. Section 3 provides that no person shall
   depart from or attempt to depart from India unless he holds in this behalf a valid passport or
   travel document. What are the different classes of passports and travel documents which can
   be issued under the Act is laid down in Section 4. Section 5, sub-section (1) provides for
   making of an application for issue of a passport or travel document or for endorsement on
   such passport or travel document for visiting foreign country or countries and sub-section (2)
   says that on receipt of such application, the passport authority, after making such inquiry, if
   any, as it may consider necessary, shall, by order in writing, issue or refuse to issue the
   passport or travel document or make or refuse to make on the passport or travel document
   endorsement in respect of one or more of the foreign countries specified in the application.
   Sub-section (3) requires the passport authority, where it refuses to issue the passport or travel
   document or to make any endorsement on the passport or travel document, to record in
   writing a brief statement of its reasons for making such order. Section 6, sub-section (1) lays
   down the grounds on which the passport authority shall refuse to make an endorsement for
   visiting any foreign country and provides that on no other ground the endorsement shall be
   refused. There are four grounds set out in this sub-section and of them, the last is that, in the
   opinion of the Central Government, the presence of the applicant in such foreign country is
   not in the public interest. Similarly sub-section (2) of Section 6 specifies the grounds on
   which alone – and on no other grounds – the passport authority shall refuse to issue passport or
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   travel document for visiting any foreign country and amongst various grounds set out there,
   the last is that, in the opinion of the Central Government the issue of passport or travel
   document to the applicant will not be in the public interest. Then we come to Section 10
   which is the material section which falls for consideration. Sub-section (1) of that section
   empowers the passport authority to vary or cancel the endorsement of a passport or travel
   document or to vary or cancel the conditions subject to which a passport or travel document
   has been issued, having regard inter alia, to the provisions of sub-section (1) of Section 6 or
   any notification under Section 19. Sub-section (2) confers powers on the passport authority to
   vary or cancel the conditions of the passport or travel document on the application of the
   holder of the passport or travel document and with the previous approval of the Central
   Government. Sub-section (3) provides that the passport authority may impound or cause to be
   impounded or revoke a passport or travel document on the grounds set out in clauses (a) to
   (h). The order impounding the passport in the present case was made by the Central
   Government under clause (c) which reads as follows:
   (c) if the passport authority deems it necessary so to do in the interest of the
   Sovereignty and Integrity of India, the security of India, friendly relations of India
   with any foreign country, or in the interests of the general public….
   The particular ground relied upon for making the order was that set out in the last part of
   clause (c), namely, that the Central Government deems it necessary to impound the passport
   “in the interests of the general public”. Then follows sub-section (5) which requires the
   passport authority impounding or revoking a passport or travel document or varying or
   cancelling an endorsement made upon it to “record in writing a brief statement of the reasons
   for making such order and furnish to the holder of the passport or travel document on demand
   a copy of the same unless, in any case, the passport authority is of the opinion that it will not
   be in the interests of the sovereignty and integrity of India, the security of India, friendly
   relations of India with any foreign country or in the interests of the general public to furnish
   such a copy”. It was in virtue of the provision contained in the latter part of this sub-section
   that the Central Government declined to furnish a copy of the statement of reasons for
   impounding the passport of the petitioner on the ground that it was not in the interests of the
   general public to furnish such copy to the petitioner. It is indeed a matter of regret that the
   Central Government should have taken up this attitude in reply to the request of the petitioner
   to be supplied a copy of the statement of reasons, because ultimately, when the petition came
   to be filed, the Central Government did disclose the reasons in the affidavit in reply to the
   petition which shows that it was not really contrary to public interest and if we look at the
   reasons given in the affidavit in reply, it will be clear that no reasonable person could possibly
   have taken the view that the interests of the general public would be prejudiced by the
   disclosure of the reasons. This is an instance showing how power conferred on a statutory
   authority to act in the interests of the general public can sometimes be improperly exercised.
   If the petitioner had not filed the petition, she would perhaps never have been able to find out
   what were the reasons for which her passport was impounded and she was deprived of her
   right to go abroad. The necessity of giving reasons has obviously been introduced in subsection (5) so that it may act as a healthy check against abuse or misuse of power. If the
   reasons given are not relevant and there is no nexus between the reasons and the ground on
   which the passport has been impounded, it would be open to the holder of the passport to
   challenge the order impounding it in a Court of law and if the court is satisfied that the
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   reasons are extraneous or irrelevant, the Court would strike down the order. This liability to
   be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala
   fide exercise of power. The Court would, therefore, be very slow to accept, without close
   scrutiny, the claim of the passport authority that it would not be in the interests of the general
   public to disclose the reasons. The passport authority would have to satisfy the Court by
   placing proper material that the giving of reasons would be clearly and indubitably against the
   interests of the general public and if the Court is not so satisfied, the Court may require the
   passport authority to disclose the reasons, subject to any valid and lawful claim for privilege
   which may be set up on behalf of the Government. Here in the present case, as we have
   already pointed out, the Central Government did initially claim that it would be against the
   interests of the general public to disclose the reasons for impounding the passport, but when it
   came to filing the affidavit in reply, the Central Government very properly abandoned this
   unsustainable claim and disclosed the reasons. The question whether these reasons have any
   nexus with the interests of the general public or they are extraneous and irrelevant is a matter
   which we shall examine when we deal with the arguments of the parties. Meanwhile,
   proceeding further with the resume of the relevant provisions, reference may be made to
   Section 11 which provides for an appeal inter alia against the order impounding or revoking a
   passport or travel document under sub-section (3) of Section 10. But there is a proviso to this
   section which says that if the order impounding or revoking a passport or travel document is
   passed by the Central Government, there shall be no right of appeal. These are the relevant
   provisions of the Act in the light of which we have to consider the constitutionality of subsection (3)(c) of Section 10 and the validity of the order impounding the passport of the
   petitioner.
   Meaning and content of personal liberty in Article 21
4. The first contention urged on behalf of the petitioner in support of the petition was that
   the right to go abroad is part of ‘personal liberty’ within the meaning of that expression as
   used in Article 21 and no one can be deprived of this right except according to the procedure
   prescribed by law. There is no procedure prescribed by the Passports Act, 1967 for
   impounding or revoking a passport and thereby preventing the holder of the passport from
   going abroad and in any event, even if some procedure can be traced in the relevant
   provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for
   giving an opportunity to the holder of the passport to be heard against the making of the order
   and hence the action of the Central Government in impounding the passport of the petitioner
   is in violation of Article 21. This contention of the petitioner raises a question as to the true
   interpretation of Article 21. What is the nature and extent of the protection afforded by this
   article? What is the meaning of ‘personal liberty’: does it include the right to go abroad so
   that this right cannot be abridged or taken away except in accordance with the procedure
   prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article
   21 merely require that there must be some semblance of procedure, howsoever arbitrary or
   fanciful, prescribed by law before a person can be deprived of his personal liberty or that the
   procedure must satisfy certain requisites in the sense that it must be fair and reasonable?
   Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
   These fundamental rights had their roots deep in the struggle for independence and, as
   pointed out by Granville Austin in ‘The Indian Constitution – Cornerstone of a Nation’,
   “they were included in the Constitution in the hope and expectation that one day the tree of
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   true liberty would bloom in India”. They were indelibly written in the subconscious memory
   of the race which fought for well nigh thirty years for securing freedom from British rule and
   they found expression in the form of fundamental rights when the Constitution was enacted.
   These fundamental rights represent the basic values cherished by the people of this country
   since the Vedic times and they are calculated to protect the dignity of the individual and create
   conditions in which every human being can develop his personality to the fullest extent. They
   weave a “pattern of guarantees on the basic-structure of human rights” and impose negative
   obligations on the State not to encroach on individual liberty in its various dimensions. It is
   apparent from the enunciation of these rights that the respect for the individual and his
   capacity for individual Volition which finds expression there is not a self-fulfilling prophecy.
   Its purpose is to help the individual to find his own liability, to give expression to his
   creativity and to prevent governmental and other forces from ‘alienating’ the individual from
   his creative impulses. These rights are wide ranging and comprehensive and they fall under
   seven heads, namely, right to equality, right to freedom, right against exploitation, right to
   freedom of religion, cultural and educational rights, right to property and right to
   constitutional remedies. Articles 14 to 18 occur under the heading ‘Right to Equality’, and of
   them, by far the most important is Article 14 which confers a fundamental right by injuncting
   the State not to “deny to any person equality before the law or the equal protection of the laws
   within the territory of India”. Articles 19 to 22, which find place under the heading “Right to
   freedom” provide for different aspects of freedom. Clause (1) of Article 19 enshrines what
   may be described as the seven lamps of freedom.
   It provides that all citizens shall have the right – (a) to freedom of speech and expression:
   (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move
   freely throughout the territory of India; (e) to reside and settle in any part of the territory of
   India; (f) to acquire, hold and dispose of property and (g) to practice any profession or to
   carry on any occupation, trade or business. But these freedoms are not and cannot be absolute,
   for absolute and unrestricted freedom of one may be destructive of the freedom of another
   and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore,
   clauses (2) to (6) of Article 19 permit reasonable restrictions to be imposed on the exercise of
   the fundamental rights guaranteed under clause (1) of that article. Article 20 need not detain
   us as that is not material for the determination of the controversy between the parties. Then
   comes Article 21 Article 22 confers protection against arrest-and detention in certain cases
   and provides inter alia safeguards in case of preventive detention. The other fundamental
   rights are not relevant to the present discussion and we need not refer to them.
5. It is obvious that Article 21, though couched in negative language, confers the
   fundamental right to life and personal liberty. So far as the right to personal liberty is
   concerned, it is ensured by providing that no one shall be deprived of personal liberty except
   according to procedure prescribed by law. The first question that arises for consideration on
   the language of Article 21 is: what is the meaning and content of the words/personal liberty’
   as used in this article? This question incidentally came up for discussion in some of the
   judgments in A. K. Gopalan v. State of Madras [AIR 1950 SC 27] and the observations made
   by Patanjali Sastri, J., Mukherjea, J., and S. R. Das, J., seemed to place a narrow
   interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to
   freedom of the person against unlawful detention. But there was no definite pronouncement
   made on this point since the question before the Court was not so much the interpretation of
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   the words ‘personal liberty’ as the inter-relation between Articles 19 and 21. It was in Kharak
   Singh v. State of U. P. [AIR 1963 SC 1295], that the question as to the proper scope and
   meaning of the expression ‘personal liberty’ came up pointedly for consideration for the first
   time before this Court. The majority of the Judges took the view “that ‘personal liberty’ is
   used in the article as a 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 the 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 minority judges, however, disagreed with this view taken by the majority and explained
   their position in the following words: “No doubt the expression ‘personal liberty’ is a
   comprehensive one and the right to move freely is an attribute of personal liberty. It is said
   that the freedom to move freely is carved out of personal liberty and, therefore, the expression
   ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct
   approach. Both are independent fundamental rights, though there is overlapping. There is no
   question of one being carved out of another. The fundamental right of life and personal liberty
   has many attributes and some of them are found in Article 19. If a person’s fundamental right
   under Article 21 is infringed, the State can rely upon a law to sustain the action, but that
   cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2)
   so far as the attributes covered by Article 19(1) are concerned.” There can be no doubt that in
   view of the decision of this Court in R. C. Cooper v. Union of India, the minority view must
   be regarded as correct and the majority view must be held to have been overruled. We shall
   have occasion to analyse and discuss the decision in R. C. Cooper’s case a little later when we
   deal with the arguments based on infraction of Articles 19(l)(a) and 19(l)(g), but it is
   sufficient to state for the present that according to this decision, which was a decision given
   by the full Court, the fundamental rights conferred by Part III are not distinct and mutually
   exclusive rights. Each freedom has different dimensions and merely because the limits of
   interference with one freedom are satisfied, the law is not freed from the necessity to meet the
   challenge of another guaranteed freedom. The decision in A. K. Gopalan case gave rise to the
   theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive – each article enacting
   a code relating to the protection of distinct rights, but this theory was overturned in R. C.
   Cooper case where Shah, J., speaking on behalf of the majority pointed out that “Part III of
   the Constitution weaves a pattern of guarantees on the texture of basic human rights. The
   guarantees delimit the protection of those rights in their allotted fields they do not attempt to
   enunciate distinct rights.” The conclusion was summarised in these terms: “In our judgment,
   the assumption in A. K. Gopalan case that certain articles in the Constitution exclusively deal
   with specific matters – cannot be accepted as correct”. It was held in R. C. Cooper case – and
   that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of
   the contrary statement of law contained in the opinions of Kania, C.J., Patanjali Sastri, J.,
   Mahajan, J., Mukherjea, J., and S. R. Das, J., in A. K. Gopalan case – that even where a
   person is. detained in accordance with the procedure prescribed by law, as mandated by
   Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to
   be available to him and the law authorising such detention has to satisfy the test of the
   applicable freedoms under Article 19, clause (1). This would clearly show that Articles 19(1)
   and 21 are not mutually exclusive, for, if they were, there would be no question of a law
   depriving a person of personal liberty within the meaning of Article 21 having to meet the
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   challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of
   preventive detention which deprives a person of ‘personal liberty’ in the narrowest sense,
   namely, freedom from detention and thus falls indisputably within Article 22 would not
   require to be tested on the touchstone of clause (d) of Article 19(1) and yet it was held by a
   Bench of seven Judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal
   [AIR 1973 SC 1425] that such a law would have to satisfy the requirement inter alia of
   Article 19(1), clause (d) and in Haradhan Saha v. The State of West Bengal [(1975) 1 SCR
   778], which was a decision given by a Bench of five Judges, this Court considered the
   challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of
   Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee
   embodied in that article. It is indeed difficult to see on what principle we can refuse to give its
   plain natural meaning to the expression ‘personal liberty’ as used in Article 21 and read it in a
   narrow and restricted sense so as to exclude those attributes of personal liberty which are
   specifically dealt with in Article 19. We do not think that this would be a correct way of
   interpreting the provisions of the Constitution conferring fundamental rights. The attempt of
   the Court should be to expand the reach and ambit of the fundamental rights rather than
   attenuate their meaning and content by a process of judicial construction. The wavelength for
   comprehending the scope and ambit of the fundamental rights has been set by this Court in
   R.C. Cooper case and our approach in the interpretation of the fundamental rights must now
   be in tune with this wave-length. We may point out even at the cost of repetition that this
   Court has said in so many terms in R.C. Cooper case that each freedom has different
   dimensions and there may be overlapping between different fundamental rights and therefore
   it is not a valid argument to say that the expression ‘personal liberty’ in Article 21 must be so
   interpreted as to avoid overlapping between that article and Article 19(1).
   The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a
   variety of rights which go to constitute the personal liberty of man and some of them have
   been raised to the status of distinct fundamental rights and given additional protection under
   Article 19. Now, it has been held by this Court in Satwant Singh case that ‘personal liberty’
   within the meaning of Article 21 includes within its ambit the right to go abroad and
   consequently no person can be deprived of this right except according to procedure prescribed
   by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the
   right of a person to go abroad and that was the reason why the order of the Passport Officer
   refusing to issue passport to the petitioner in Satwant Singh case was struck down as invalid.
   It will be seen at once from the language of Article 21 that the protection it secures is a
   limited one. It safeguards the right to go abroad against executive interference which is not
   supported by law; and law here means ‘enacted law’ or ‘state law’. Thus, no person can be
   deprived of his right to go abroad unless there is a law made by the State prescribing the
   procedure for so depriving him and the deprivation is effected strictly in accordance with such
   procedure. It was for this reason, in order to comply with the requirement of Article 21, that
   Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear
   from the provisions of the Passports Act, 1967 that it lays down the circumstances under
   which a passport may be issued or refused or cancelled or impounded and also prescribes a
   procedure for doing so, but the question is whether that is sufficient compliance with Article
6. Is the prescription of some sort of procedure enough or must the procedure comply with
   any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or
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   unreasonable. This indeed was conceded by the learned Attorney General who with his usual
   candour frankly stated that it was not possible for him to contend that any procedure
   howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some
   discussion in A. K. Gopalan case in regard to the nature of the procedure required to be
   prescribed under Article 21 and at least three of the learned Judges out of five expressed
   themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic
   or oppressive procedure. Fazil Ali, J., who was in a minority, went to the farthest limit in
   saying that the procedure must include the four essentials set out in Prof. Willis’ book on
   Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary
   course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that “certain
   basic principles emerged as the constant factors known to all those procedures and they
   formed the core of the procedure established by law”. Mahajan, J., also observed that Article
   21 requires that “there should be some form of proceeding before a person can be condemned
   either in respect of his life or his liberty” and “it negatives the idea of fantastic, arbitrary and
   oppressive forms of proceedings”. But apart altogether from these observations in A. K.
   Gopalan case, which have great weight, we find that even on principle the concept of
   reasonableness must be projected in the procedure contemplated by Article 21, having regard
   to the impact of Article 14 on Article 21.
   The inter-relationship between Articles 14, 19 and 21
7. We may at this stage consider the inter-relation between Article 21 on the one hand and
   Articles 14 and 19 on the other. We have already pointed out that the view taken by the
   majority in A.K. Gopalan case was that so long as a law of preventive detention satisfies the
   requirements of Article 22, it would be within the terms of Article 21 and it would not be
   required to meet the challenge of Article 19. This view proceeded on the assumption that
   “certain articles in the constitution exclusively deal with specific matters” and where the
   requirements of an article dealing with the particular matter in question are satisfied and there
   is no infringement of the fundamental right guaranteed by that article, no recourse can be had
   to a fundamental right conferred by another article. This doctrine of exclusivity was seriously
   questioned in R.C. Cooper case and it was over-ruled by a majority of the full Court, only
   Ray, J., as he then was, dissenting. The majority judges held that though a law of preventive
   detention may pass the test of Article 22, it has yet to satisfy the requirements of other
   fundamental rights such as Article 19. The ratio of the majority judgment in R.C. Cooper case
   was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges
   of this Court in Shambhu Nath Sarkar v. The State of West Bengal. The learned Judge there
   said:
   In Gopalan case the majority court had held that Article 22 was a self-contained Code
   and therefore a law of preventive detention did not have to satisfy the requirements of
   Articles 19, 14 and 21. The view of Fazil Ali, J., on the other hand, was that preventive
   detention was a direct breach of the right under Article l9(l)(d) and that a law providing
   for preventive detention had to be subject to such judicial review as is obtained under
   clause (5) of that article. In R.C. Cooper v. Union of India the aforesaid premise of the
   majority in Gopalan case was disapproved and therefore it no longer holds the field.
   Though Cooper case dealt with the inter-relationship of Article 19 and Article 31, the
   basic approach to construing the fundamental rights guaranteed in the different provisions
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   of the Constitution adopted in this cage held the major premise of the majority in
   Gopalan’s case to be incorrect.
   Subsequently, in Haradhan Saha v. State of West Bengal also, a Bench of five Judges of this
   Court, after referring to the decisions in A.K. Gopalan case and R.C. Cooper case, agreed that
   the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to
   be tested in regard to its reasonableness with reference to Article 19. That decision accepted
   and applied the ratio in R.C. Cooper case and Shambhu Nath Sarkar case and proceeded to
   consider the challenge of Article 19, to the constitutional validity of the Maintenance of
   Internal Security Act, 1971 and held that the Act did not violate any of the constitutional
   guarantees enshrined in Article 19. The law, must, therefore, now be taken to be well settled
   that Article 21 does not exclude Article 19 and that even if there is a law prescribing a
   procedure for depriving a person of ‘personal liberty’ and there is consequently no
   infringement of the fundamental right conferred by Article 21, such law, in so far as it
   abridges or takes away any fundamental right under Article 19 would have to meet the
   challenge of that article. This proposition can no longer be disputed after the decisions in R.
   C. Cooper case, Shambhu Nath Sarkar case and Haradhan Saha case. Now, if a law
   depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within
   the meaning of Article 21 has to stand the test of one or more of the fundamental rights
   conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must
   also be liable to be tested with reference to Article 14. This was in fact not disputed by the
   learned Attorney General and indeed he could not do so in view of the clear and categorical
   statement made by Mukherjea, J., in A.K. Gopalan case that Article 21 “presupposes that the
   law is a valid and binding law under the provisions of the Constitution having regard to the
   competence of the legislature and the subject it relates to and does not infringe any of the
   fundamental rights which the Constitution provides for”, including Article 14. This Court also
   applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar
   Ali Sarkar and Kathi Raning Rawat v. The State of Saurashtra where there was a special
   law providing for trial of certain offences by a speedier process which took away some of the
   safeguards available to an accused under the ordinary procedure in the Criminal Procedure
   Code. The special law in each of these two cases undoubtedly prescribed a procedure for trial
   of the specified offences and this procedure could not be condemned as inherently unfair or
   unjust and there was thus compliance with the requirement of Article 21, but even so, the
   validity of the special law was tested before the Supreme Court on the touchstone of Article
   14 and in one case, namely, Kathi Raning Rawat case, the validity was upheld and in the
   other, namely, Anwar Ali Sarkar case, it was struck down. It was held in both these cases that
   the procedure established by the special law must not be violative of the equality clause. That
   procedure must answer the requirement of Article 14.
   The nature and requirement of the procedure under Article 21
8. Now, the question immediately arises as to what is the requirement of Article 14: what
   is the content and reach of the great equalising principle enunciated in this article? There can
   be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests
   securely the foundation of our democratic republic. And, therefore, it must not be subjected to
   a narrow, pedantic or lexicographic approach- No attempt should be made to truncate its allembracing scope and meaning, for to do so would be to violate its activist magnitude.
   275
   Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned
   within traditional and doctrinaire limits. We must reiterate here what was pointed out by the
   majority in E.P. Royappa v. State of Tamil Nadu [(1974) 2 SCR 348], namely, that “from a
   positivistic point of view, equality is antithetic to arbitrariness. In fact equality and
   arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other,
   to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it
   that it is unequal both according to political logic and constitutional law and is therefore
   violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness
   and equality of-treatment. The principle of reasonableness, which legally as well as
   philosophically, is an essential element of equality or non-arbitrariness pervades Article 14
   like a brooding omnipresence and the procedure contemplated by Article 21 must answer the
   test of reasonableness in order to be in conformity with Article 14. It must be “right and just
   and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all
   and the requirement of Article 21 would not be satisfied.
   How far natural justice is an essential element of ‘procedure established by law
9. The question immediately arises: does the procedure prescribed by the Passports Act,
   1967 for impounding a passport meet the test of this requirement? Is it ‘right or fair or just’?
   The argument of the petitioner was that it is not, because it provides for impounding of a
   passport without affording reasonable opportunity to the holder of the passport to be heard in
   defence. To impound the passport of a person, said the petitioner, is a serious matter, since it
   prevents him from exercising his constitutional right to go abroad and such a drastic
   consequence cannot in fairness be visited without observing the principle of audi alteram
   partem. Any procedure which permits impairment of the constitutional right to go abroad
   without giving reasonable opportunity to show cause cannot but be condemned as unfair and
   unjust and hence, there is in the present case clear infringement of the requirement of Article
10. Now, it is true that there is no express provision in the Passports Act, 1967 which requires
    that the audi alteram partem rule should be followed before impounding a passport, but that
    is not conclusive of the question. If the statute makes itself clear on this point, then no more
    question arises. But even when the statute is silent, the law may in a given case make an
    implication and apply the principle stated by Byles, J., in Cooper v. Wandswort Board of
    Works [(1861-73) All ER Rep 1554]:
    A long course of decisions, beginning with Dr Bentley’s case and ending with
    some very recent cases, establish that, although there are no positive works in the
    statute requiring that the party shall be heard, yet the justice of the common law will
    supply the omission of the legislature.
    The principle of audi alteram partem, which mandates that no one shall be condemned
    unheard, is part of the rules of natural justice. In fact, there are two main principles in which
    the rules of natural justice are manifested, namely, nemo judex in causa sua and audi alteram
    partem. We are not concerned here with the former, since there is no case of bias urged here.
    The question is only in regard to the right of hearing which involves the audi alteram partem
    rule. Can it be imported in the procedure for impounding a passport?
11. Now, as already pointed out, the doctrine of natural justice consists principally of two
    rules, namely, nemo debet esse judex in propria causa: no one shall be a judge in his own
    cause, and audi alteram partem: no decision shall be given against a party without affording
    276
    him a reasonable hearing. We are concerned here with the second rule and hence we shall
    confine ourselves only to a discussion of that rule. The learned Attorney General, appearing
    on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly
    effective tool devised by the courts to enable a statutory authority to arrive at a just decision
    and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach
    should not be narrowed and its applicability circumscribed. He rightly did not plead for
    reconsideration of the historic advances made in the law as a result of the decisions of this
    Court and did not suggest that the Court should retrace its steps. That would indeed have been
    a most startling argument coming from the Government of India and for the Court to accede
    to such an argument would have been an act of utter retrogression. But fortunately no such
    argument was advanced by the learned Attorney General. What he urged was a very limited
    contention, namely, that having regard to the nature of the action involved in the impounding
    of a passport, the audi alteram partem rule must be held to be excluded, because if notice
    were to be given to the holder of the passport and reasonable opportunity afforded to him to
    show cause why his passport should not be impounded, he might immediately, on the strength
    of the passport, make good his exit from the country and the object of impounding the
    passport would be frustrated. The argument was that if the audi alteram partem rule were
    applied, its effect would be to stultify the power of impounding the passport and it would
    defeat and paralyse the administration of the law and hence the audi alteram partem rule
    cannot in fairness be applied while exercising the power to impound a passport. This
    argument was sought to be supported by reference to the statement of the law in S.A. de
    Smith’s Judicial Review of Administrative Action, 2nd ed, where the learned author says at
    page 174 that “in administrative law a prima facie right to prior notice and opportunity to be
    heard may be held to be excluded by implication…… where an obligation to give notice and
    opportunity to be heard would obstruct the taking of prompt action, especially action of a
    preventive or remedial nature”. Now, it is true that since the right to prior notice and
    opportunity of hearing arises only by implication from the duty to act fairly, or to use the
    words of Lord Morris of Borth-y-Gest, from ‘fair-play in action’, it may equally be excluded
    where, having regard to the nature of the action to be taken, its object and purpose and the
    scheme of the relevant statutory provision, fairness in action does not demand its implication
    and even warrants its exclusion. There are certain well recognised exceptions–to the audi
    alteram partem rule established by judicial decisions and they are summarised by S.A. de
    Smith in Judicial Review of Administrative Action, 2nd ed. pages 168 to 179. If we analyse
    these exceptions a little closely, it will be apparent that they do not in any way militate against
    the principle which requires fair-play in administrative action. The word ‘exception’ is really
    a misnomer because in these exclusionary cases, the audi alteram pattern rule is held
    inapplicable not by way of an exception to “fair-play in action”, but because nothing unfair
    can be inferred by not affording an opportunity to present or meet a case. The audi alteram
    partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends
    of justice, or to make the law ‘lifeless, absurd, stultifying, self-defeating or plainly contrary to
    the common sense of the situation’. Since the life of the law is not logic but experience and
    every legal proposition must, in the ultimate analysis, be tested on the touchstone of
    pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded,
    if importing the right to be heard has the effect of paralysing the administrative process or the
    need for promptitude or the urgency of the situation so demands. But at the same time it must
    277
    be remembered that this is a rule of vital importance in the field of administrative law and it
    must not be jettisoned save in very exceptional circumstances where compulsive necessity so
    demands. It is a wholesome rule designed to secure the rule of law and the Court should not
    be too ready to eschew it in its application to a given case. True it is that in questions of this
    kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely
    because the traditional methodology of a formalised hearing may have the effect of stultifying
    the exercise of the statutory power, the audi alteram partem should be wholly excluded. The
    Court must make every effort to salvage this cardinal rule to the maximum extent permissible
    in a given case. It must not be forgotten that “natural justice is pragmatically flexible and is
    amenable to capsulation under the compulsive pressure of circumstances”. The audi alteram
    partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer
    situational modifications. The core of it must, however, remain, namely, that the person
    affected must have a reasonable opportunity of being heard and the hearing must be a genuine
    hearing and not an empty public relations exercise. That is why Tucker, L.J., emphasised in
    Russel v. Duke of Norfolk (1949) 1 All ER 109 that “whatever standard of natural justice is
    adopted, one essential is that the person concerned should have a reasonable opportunity of
    presenting his case”. What opportunity may be regarded as reasonable would necessarily
    depend on the practical necessities of the situation. It may be a sophisticated full-fledged
    hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to
    the decision or it may even be a post-decisional remedial hearing.
    The audi alteram partem rule is sufficiently flexible to permit modifications and
    variations to suit the exigencies of myriad kinds of situations which may arise. This
    circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in
    Wiseman v. Borneman when he said that he would be “sorry to see this fundamental general
    principle degenerate into a series of hard and fast rules” and Lord Hailsham, L.C., also
    observed in Pearlberg v. Varty [(1971) 1 WLR 728] that the courts “have taken in
    increasingly sophisticated view of what is required in individual cases”. It would not.
    therefore, be right to conclude that the audi alteram partem rule is excluded merely because
    the power to impound a passport might be frustrated, if prior notice and hearing were to be
    given to the person concerned before impounding his passport The Passport Authority may
    proceed to impound the passport without giving any prior opportunity to the person
    concerned to be heard, but as soon as the order impounding the passport is made, an
    opportunity of hearing, remedial in aim, should be given to him so that he may present his
    case and controvert that of the Passport Authority and point out why his passport should not
    be impounded and the order impounding it recalled. This should not only be possible but also
    quite appropriate, because the reasons for impounding the passport are required to be supplied
    by the Passport Authority after the making of the order and the person affected would,
    therefore, be in a position to make a representation setting forth his case and plead for setting
    aside the action impounding his passport. A fair opportunity of being heard following
    immediately upon the order impounding the passport would satisfy the mandate of natural
    justice and a provision requiring giving of such opportunity to the person concerned can and
    should be read by implication in the Passports Act, 1967. If such a provision were held to be
    incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the
    procedure prescribed by the Act for impounding a passport would be right, fair and just and it
    would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold
    278
    that the procedure ‘established’ by the Passports Act, 1967 for impounding a passport is in
    conformity with the requirement of Article 21 and does not fall foul of that article.
12. But the question then immediately arises whether the Central Government has
    complied with this procedure in impounding the passport of the petitioner. Now, it is obvious
    and indeed this could not be controverted, that the Central Government not only did not give
    an opportunity of hearing to the petitioner after making the impugned order impounding her
    passport but even declined to furnish to the petitioner the reasons for impounding her passport
    despite request made by her. We have already pointed out that the Central Government was
    wholly unjustified in withholding the reasons for impounding the passport from the petitioner
    and this was not only in breach of the statutory provision, but it also amounted to denial of
    opportunity of hearing to the petitioner. The order impounding the passport of the petitioner
    was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi
    alteram partem and it was not in conformity with the procedure prescribed by the Passports
    Act, 1967. Realising that this was a fatal defect which would void the order impounding the
    passport, the learned Attorney General made a statement on behalf of the Government of
    India to the following effect:
13. The Government is agreeable to considering any representation that may
    be made by the petitioner in respect of the impounding of her passport and giving her
    an opportunity in the matter. The opportunity will be given within two weeks of the
    receipt of the representation. It is clarified that in the present case the grounds for
    impounding the passport are those mentioned in the affidavit in reply dated August
    18,, 1977 of Shri Ghosh except those mentioned in para 2(xi).
14. The representation of the petitioner will be dealt with expeditiously in
    accordance with law.
    This statement removes the vice from the order impounding the passport and it can no longer
    be assailed on the ground that it does not comply with the audi alteram partem rule or is not
    in accord with the procedure prescribed by the Passports Act, 1967.
    Is Section 10(3)(c) violative of Article 14?
15. That takes us to the next question whether Section 10(3)(c) is violative of any of the
    fundamental rights guaranteed under Part III of the Constitution. Only two articles of the
    Constitution are relied upon for this purpose and they are Articles 14 and 19(l)(a) and (g). We
    will first dispose of the challenge based on Article 14 as it lies in a very narrow compass. The
    argument under this head of challenge was that Section 10(3)(c) confers unguided and
    unfettered power on the Passport Authority to impound a passport and hence it is violative of
    the equality clause contained in Article 14. It was conceded that under Section 10(3)(c) the
    power to impound a passport can be exercised only upon one or more of the stated grounds,
    but the complaint was that the ground of “interests of the general public” was too vague and
    indefinite to afford any real guidance to the Passport Authority and the Passport Authority
    could, without in any way violating the terms of the section, impound the passport of one and
    not of another, at its discretion. Moreover, it was said that when the order impounding a
    passport is made by the Central Government, there is no appeal or revision provided by the
    statute and the decision of the Central Government that it is in public interest to impound a
    279
    passport is final and conclusive. The discretion vested in the Passport Authority, and
    particularly in the Central Government, is thus unfettered and unrestricted and this is plainly
    in violation of Article 14. Now, the law is well settled that when a statute vests unguided and
    unrestricted power in an authority to affect the rights of a person without laying down any
    policy or principle which is to guide the authority in exercise of this power, it would be
    affected by the vice of discrimination since it would leave it open to the authority to
    discriminate between persons and things similarly situated. But here it is difficult to say that
    the discretion conferred on the Passport Authority is arbitrary or unfettered. There are four
    grounds set out in Section 10(3)(c) which would justify the making of an order impounding a
    passport. We are concerned only with the last ground denoted by the words “in the interests
    of the general public”, for that is the ground which is attacked as vague and indefinite. We
    fail to see how this ground can, by any stretch of argument, be characterised as vague or
    undefined. The words “in the interests of the general public” have a clearly well defined
    meaning and the courts have often been called upon to decide whether a particular action is
    “in the interests of the general public” or in “public interest” and no difficulty has been
    experienced by the courts in carrying out this exercise. These words are in fact borrowed
    ipsissima verba from Article 19(5) and we think it would be nothing short of heresy to accuse
    the constitution-makers of vague and loose thinking.
    The legislature performed a scissors and paste operation in lifting these words out of
    Article 19(5) and introducing them in Section 10(3)(c) and if these words are not vague and
    indefinite in Article 19(5), it is difficult to see how they can be condemned to be such when
    they occur in Section 10(3)(c). How can Section 10(3)(c) be said to incur any constitutional
    infirmity on account of these words when they are no wider than the constitutional provision
    in Article 19(5) and adhere loyally to the verbal formula adopted in the Constitution? We are
    clearly of the view that sufficient guidelines are provided by the words “in the interests of the
    general public” and the power conferred on the Passport Authority to impound a passport
    cannot be said to be unguided or unfettered. Moreover, it must be remembered that the
    exercise of this power is not made dependent on the subjective opinion of the Passport
    Authority as regards the necessity of exercising it on one or more of the grounds stated in the
    section, but the Passport Authority is required to record in writing a brief statement of reasons
    for impounding the passport and, save in certain exceptional circumstances, to supply a copy
    of such statement to the person affected, so that the person concerned can challenge the
    decision of the Passport Authority in appeal and the appellate authority can examine whether
    the reasons given by the Passport Authority are correct, and if so, whether they justify the
    making of the order impounding the passport. It is true that when the order impounding a
    passport is made by the Central Government, there is no appeal against it, but it must be
    remembered that in such a case the power is exercised by the Central Government itself and it
    can safely be assumed that the Central Government will exercise the power in a reasonable
    and responsible manner. When power is vested in a high authority like the Central
    Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of
    power, the arms of the Court are long enough to reach it and to strike it down. The power
    conferred on the Passport Authority to impound a passport under Section 10(3)(c) cannot,
    therefore, be regarded as discriminatory and it does not fall foul of Article 14. But every
    exercise of such power has to be tested in order to determine whether it is arbitrary or within
    the guidelines provided in Section 10(3)(c).
    280
    Conflicting approaches for locating the fundamental right violated: Direct and inevitable
    effect test.
16. We think it would be proper at this stage to consider the approach to be adopted by
    the Court in adjudging the constitutionality of a statute on the touchstone of fundamental
    rights. What is the test or yardstick to be applied for determining whether a statute infringes a
    particular fundamental right? The law on this point has undergone radical change since the
    days of A.K. Gopalan case. That was the earliest decision of this Court on the subject,
    following almost immediately upon the commencement of the Constitution. The argument
    which arose for consideration in this case was that the preventive detention order results in
    the detention of the applicant in a cell and hence it contravenes the fundamental rights
    guaranteed under clauses (a),(b),(c),(d),(e) and (g) of Article 19(1). This argument was
    negatived by Kania, C.J., who pointed out that: “The true approach is only to consider the
    directness of the legislation and not what will be the result of the detention, otherwise valid,
    on the mode of the detenue’s life…..Any other construction put on the Article… will be
    unreasonable.” These observations were quoted with approval by Patanjali Sastri, J., speaking
    on behalf of the majority in Ram Singh v. State of Delhi [AIR 1951 SC 270]. There, the
    detention of the petitioner was ordered with a view to preventing him from making any
    speeches prejudicial to the maintenance of public order and the argument was that the order
    of detention was invalid as it infringed the right of free speech and expression guaranteed
    under. Article 19(l)(a). The Court took the view that the direct object of the order was
    preventive detention and not the infringement of the right of freedom of speech and
    expression, which was merely consequential upon the detention of the detenue and upheld the
    validity of the order. The decision in A.K. Gopalan case, followed by Ram Singh case, gave
    rise to the theory that the object and form of State action determine the extent of protection
    which may be claimed by an individual and the validity of such action has to be judged by
    considering whether it is “directly in respect of the subject covered by any particular article of
    the Constitution or touches the said article only incidentally or indirectly”. The test to be
    applied for determining the constitutional validity of State action with reference to
    fundamental rights is: what is the object of the authority in taking the action: what is the
    subject-matter of the action and to which fundamental right does it relate? This theory that
    “the extent of protection of important guarantees, such as the liberty of person and right to
    property, depend upon the form and object of the State action and not upon its direct
    operation upon the individual’s freedom” held sway for a considerable time and was applied
    in Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1] to sustain an order
    made by the High Court in a suit for defamation prohibiting the publication of the evidence of
    a witness.
    This Court, after referring to the observations of Kania, C.J., in A.K. Gopalan case and
    noting that they were approved by the Full Court in Ram Singh case, pointed out that the
    object of the impugned order was to give protection to the witness in order to obtain true
    evidence in the case with a view to do justice between the parties and if incidentally it
    overrated to prevent the petitioner from reporting the proceedings of the Court in the press, it
    could not be said to contravene Article 19(l)(a).
17. It was only R.C. Cooper case that the doctrine that the object and form of the State
    action alone determine the extent of protection that may be claimed by an individual and that
    281
    the effect of the State action on the fundamental right of the individual is irrelevant, was
    finally rejected. It may be pointed out that this doctrine is in substance and reality nothing
    else than the test of pith and substance which is applied for determining the constitutionality
    of legislation where there is conflict of legislative powers conferred on Federal and State
    Legislatures with reference to legislative Lists. The question which is asked in such cases is:
    what is the pith and substance of the legislations; if it “is within the express powers, then it is
    not invalidated if incidentally it effects matters which are outside the authorised field”. Here
    also, on the application of this doctrine, the question that is required to be considered is: what
    is the pith and substance of the action of the State, or in other words, what is its true nature
    and character; if it is in respect of the subject covered by any particular fundamental right, its
    validity must be judged only by reference to that fundamental right and it is immaterial that it
    incidentally affects another fundamental right. Mathew, J., in his dissenting judgment in
    Bennett Coleman & Co. v. Union of India recognised the likeness of this doctrine to the pith
    and substance test and pointed out that “the pith and substance test, although not strictly
    appropriate, might serve a useful purpose” in determining whether the State action infringes a
    particular fundamental right. But in R.C. Cooper case, which was a decision given by the full
    Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out
    by Shah, J., speaking on behalf of the majority:
    (I)t is not the object of the authority making the law impairing the right of a citizen,
    nor the form of action that determines the protection he can claim; it is the effect of
    the law and of the action upon the right which attract the jurisdiction of the Court to
    grant relief. If this be the true view, and we think it is, in determining the impact of
    State action upon constitutional guarantees which are fundamental, it follows that the
    extent of protection against impairment of a fundamental right is determined not by
    the object of the Legislature nor by the form of the action, but by its direct operation
    upon the individual’s rights.
    We are of the view that the theory that the object and form of the State action
    determine the extent of protection which the aggrieved party may claim is not
    consistent with the constitutional scheme….
    In our judgment, the assumption in A. K. Gopalan case that certain articles in the
    Constitution exclusively deal with specific matters and in determining whether there
    is infringement of the individual’s guaranteed rights, the object and the form of the
    State action alone need be considered, and effect of the laws on fundamental rights of
    the individuals in general will be ignored cannot be accepted as correct.
    The decision in R.C. Cooper case thus overturned the view taken in A.K. Gopalan case and,
    as pointed out by Ray, J., speaking on behalf of the majority in Bennett Coleman case, it laid
    down two inter-related propositions, namely:
    First, it is not the object of the authority making the law impairing the right of the
    citizen nor the form of action that determines the invasion of the right. Secondly, it is
    the effect of the law and the action upon the right which attracts the jurisdiction of
    the Court to grant relief. The direct operation of the Act upon the rights forms the
    real test.
    The decision in Bennett Coleman case, followed upon R.C. Cooper case and it is an
    important and significant decision, since it elaborated and applied the thesis laid down in R.
    282
    C. Cooper case. The State action which was impugned in Bennett Coleman case was
    newsprint policy which inter alia imposed a maximum limit of ten pages for every newspaper
    but without permitting the newspaper to increase the number of pages by reducing circulation
    to meet its requirement even within the admissible quota. These restrictions were said to be
    violative of the right of free speech and expression guaranteed under Article 19(l)(a) since
    their direct and inevitable consequence was to limit the number of pages which could be
    published by a newspaper to ten. The argument of the Government was that the object of the
    newsprint policy was rationing and equitable distribution of imported newsprint which was
    scarce commodity and not abridgement of freedom of speech and expression. The subjectmatter of the import policy was “rationing of imported commodity and equitable distribution
    of newsprint” and the newsprint policy did not directly and immediately deal with the right
    mentioned in Article 19(l)(a) and hence there was no violation of that article. This argument
    of the Government was negatived by the majority. The majority took the view that it was not
    the object of the newsprint policy or its subject-matter which was determinative but its direct
    consequence or effect upon the rights of the newspapers and since “the effect and
    consequence of the impugned policy upon the newspapers” was direct control and restriction
    of growth and circulation of newspapers, the newsprint policy infringed freedom of speech
    and expression and was hence violative of Article 19(l)(a). The pith and substance theory was
    thus negatived in the clearest term and the test applied was as to what is the direct and
    inevitable consequence or effect of the impugned State action on the fundamental right of the
    petitioner. It is possible that in a given case the pith and substance of the State action may
    deal with a particular fundamental right but its direct and inevitable effect may be on another
    fundamental right and in that case, the State action would have to meet the challenge of the
    latter fundamental right. The pith and substance doctrine looks only at the object and subjectmatter of the State action, but in testing the validity of the State action with reference to
    fundamental rights, what the Court must consider is the direct and inevitable consequence of
    the State action. Otherwise, the protection of the fundamental rights would be subtly but
    surely eroded.
18. It may be recalled that the test formulated in R.C. Cooper case merely refers to ‘direct
    operation’ or ‘direct consequence and effect’ of the State action on the fundamental right of
    the petitioner and does not use the word ‘inevitable’ in this connection. But there can be no
    doubt, on a reading of the relevant observations of Shah, J., that such was the test really
    intended to be laid down by the Court in that case. If the test were merely of direct or indirect
    effect, it would be an open-ended concept and in the absence of operational criteria for
    judging ‘directness’, it would give the Court an unquantifiable discretion to decide whether in
    a given case a consequence or effect is direct or not. Some other concept-vehicle would be
    needed to quantify the extent of directness or indirectness in order to apply the test. And that
    is supplied by the criterion of ‘inevitable’ consequence or effect adumbrated in the Express
    Newspapers’ case. This criterion helps to quantify the extent of directness necessary to
    constitute infringement of a fundamental right. Now, if the effect of State action on
    fundamental right is direct and inevitable, then a fortiori it must be presumed to have been
    intended by the authority taking the action and hence this doctrine of direct and inevitable
    effect has been described by some jurists as the doctrine of intended and real effect. This is
    the test which must be applied for the purpose of determining whether Section 10(3)(c) or the
    impugned order made under it is violative of Article 19(l)(a) or (g).
    283
    Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.
    (2017) 10 SCC 1
    [JS Khehar, CJ and J Chelameswar, SA Bobde, RK Agrawal, Rohinton F Nariman, Abhay Manohar
    Sapre, Dr DY Chandrachud, SK Kaul and S Abdul Nazeer, JJ]
    Dr DY Chandrachud:
    A. The reference:
19. Nine judges of this Court assembled to determine whether privacy is
    constitutionally protected value. The issue reaches out to the foundation of a
    constitutional culture based on the protection of human rights and enables this Court
    to revisit the basic principles on which our Constitution has been founded and their
    consequences for a way of life it seeks to protect. This case presents challenges for
    constitutional interpretation. If privacy is to be construed as a protected constitutional
    value, it would redefine in significant ways our concepts of liberty and the
    entitlements that flow out of its protection.
20. A Bench of three judges of this Court, while considering the constitutional
    challenge to the Aadhaar card scheme of the Union government noted in its order
    dated 11 August 2015 that the norms for and compilation of demographic biometric
    data by government was questioned on the ground that it violates the right to privacy.
    The Attorney General for India urged that the existence of a fundamental right of
    privacy is in doubt in view of two decisions : the first – MP Sharma v Satish
    Chandra, District Magistrate, Delhi1 (“MP Sharma”) was rendered by a Bench of
    eight judges and the second, in Kharak Singh v State of Uttar Pradesh (“Kharak
    Singh”) was rendered by a Bench of six judges. Each of these decisions, in the
    submission of the Attorney General, contained observations that the Indian
    Constitution does not specifically protect the right to privacy. On the other hand, the
    submission of the petitioners was that M P Sharma and Kharak Singh were founded
    on principles expounded in AK Gopalan v State of Madras (“Gopalan”). Gopalan,
    which construed each provision contained in the Chapter on fundamental rights as
    embodying a distinct protection, was held not to be good law by an eleven-judge
    Bench in Rustom Cavasji Cooper v Union of India (“Cooper”). Hence the
    petitioners submitted that the basis of the two earlier decisions is not valid. Moreover,
    it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union
    of India (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh
    was specifically approved of and the decision of the majority was overruled.
    284
21. While addressing these challenges, the Bench of three judges of this Court took
    note of several decisions of this Court in which the right to privacy has been held to
    be a constitutionally protected fundamental right. Those decisions include: Gobind v
    State of Madhya Pradesh (“Gobind”), R Rajagopal v State of Tamil Nadu
    (“Rajagopal”) and People’s Union for Civil Liberties v Union of India (“PUCL”).
    These subsequent decisions which affirmed the existence of a constitutionally
    protected right of privacy, were rendered by Benches of a strength smaller than those
    in M P Sharma and Kharak Singh. Faced with this predicament and having due
    regard to the far-reaching questions of importance involving interpretation of the
    Constitution, it was felt that institutional integrity and judicial discipline would
    require a reference to a larger Bench. Hence the Bench of three learned judges
    observed in
    its order dated 11 August 2015:
    “12. We are of the opinion that the cases on hand raise far reaching questions of
    importance involving interpretation of the Constitution. Constitution, it was felt that
    institutional integrity and judicial discipline would require a reference to a larger
    Bench. Hence the Bench of three learned judges observed in its order dated 11 August
    2015:
22. Therefore, in our opinion to give a quietus to the kind of controversy raised in this
    batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma and
    Kharak Singh is scrutinized and the jurisprudential correctness of the subsequent
    decisions of this Court where the right to privacy is either asserted or referred be
    examined and authoritatively decided by a Bench of appropriate strength.”
23. On 18 July 2017, a Constitution Bench presided over by the learned Chief Justice
    considered it appropriate that the issue be resolved by a Bench of nine judges. The
    order of the Constitution Bench reads thus:
    “During the course of the hearing today, it seems that it has become essential for us to
    determine whether there is any fundamental right of privacy under the Indian
    Constitution. The determination of this question would essentially entail whether the
    decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District
    Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight-Judge Constitution Bench, and
    also, in Kharak Singh vs. The State of U.P. and Ors. – 1962 (1) SCR 332 by a sixJudge Constitution Bench, that there is no such fundamental right, is the correct
    expression of the constitutional position. Before dealing with the matter any further, we
    are of the view that the issue noticed hereinabove deserves to be placed before the nineJudge Constitution Bench. List these matters before the Nine- Judge Constitution Bench
    on 19.07.2017.”
24. The correctness of the decisions in MP Sharma and Kharak Singh, is to be
    evaluated during the course of the reference. Besides, the jurisprudential correctness
    of subsequent decisions holding the right to privacy to be a constitutionally protected
    right is to be determined. The basic question whether privacy is a right protected
    under our Constitution requires an understanding of what privacy means. For it is
    when we understand what interests or entitlements privacy safeguards, that we can
    determine whether the Constitution protects privacy. The contents of privacy need to
    285
    be analysed, not by providing an exhaustive enunciation or catalogue of what it
    includes but by indicating its broad contours. The Court has been addressed on
    various aspects of privacy including : (i) Whether there is a constitutionally protected
    right to privacy; (ii) If there is a constitutionally protected right, whether this has the
    character of an independent fundamental right or whether it arises from within the
    existing guarantees of protected rights such as life and personal liberty; (iii) the
    doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the
    nature of the regulatory power of the state.
    D. Gopalan doctrine: fundamental rights as isolated silos
    19 When eight judges of this Court rendered the decision in MP Sharma in 1954 and
    later, six judges decided the controversy in Kharak Singh in 1962, the ascendant and,
    even well established, doctrine governing the fundamental rights contained in Part III
    was founded on the Gopalan principle. In Gopalan, Chief Justice Kania, speaking for
    a majority of five of the Bench of six judges, construed the relationship between
    Articles 19 and 21 to be one of mutual exclusion. In this line of enquiry, what was
    comprehended by Article 19 was excluded from Article 21. The seven freedoms of
    Article 19 were not subsumed in the fabric of life or personal liberty in Article 21.
    The consequence was that a law which curtailed one of the freedoms guaranteed by
    Article 19 would be required to answer the tests of reasonableness prescribed by
    clauses 2 to 6 of Article 19 and those alone. In the Gopalan perspective, free speech
    and expression was guaranteed by Article 19(1)(a) and was hence excluded from
    personal liberty under Article 21. Article 21 was but a residue. Chief Justice Kania
    held:
    “Reading Article 19 in that way it appears to me that the concept of the right to move
    freely throughout the territory of India is an entirely different concept from the right to
    “personal liberty” contemplated by Article 21. “Personal liberty” covers many more
    rights in one
    sense and has a restricted meaning in another sense. For instance, while the right to move
    or reside may be covered by the expression, “personal liberty” the right to freedom of
    speech (mentioned in Article 19(1)(a)) or the right to acquire, hold or dispose of property
    (mentioned in 19(1)(f)) cannot be considered a part of the personal liberty of a citizen.
    They form part of the liberty of a citizen but the limitation imposed by the word
    “personal” leads me to believe that those rights are not covered by the expression
    personal liberty. So read there is no conflict between Articles 19 and 21. The contents
    and subject-matters of Articles 19 and 21 are thus not the same and they proceed to deal
    with the rights covered by law”.”
    ‘Procedure established by law’ under Article 21 was, in this view, not capable of
    being expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The
    dissent adopted the view that the fundamental rights are not isolated and separate but
    protect a common thread of liberty and freedom:
    286
    “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, 2 and 22
    do not to some extent overlap each other. The case of a person who is convicted of an
    offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest
    and detention in custody before trial are concerned. Preventive detention, which is dealt
    with an Article 22, also amounts to deprivation of personal liberty which is referred to in
    Article 21, and is a violation of the right of freedom of movement dealt with in Article
    19(1)(d)… It seems clear that the addition of the word “personal” before “liberty” in
    Article 21 cannot change the meaning of the words used in Article 19, nor can it put a
    matter which is inseparably bound up with personal liberty beyond its place…”
    E. Cooper and Maneka : Interrelationship between rights
25. The theory that the fundamental rights are water-tight compartments was
    discarded in the judgment of eleven judges of this Court in Cooper. Gopalan had
    adopted the view that a law of preventive detention would be tested for its validity
    only with reference to Article 22, which was a complete code relating to the subject.
    Legislation on preventive detention did not, in this view, have to meet the touchstone
    of Article 19(1)(d). The dissenting view of Justice Fazl Ali in Gopalan was noticed
    by Justice J C Shah, speaking for this Court, in Cooper. The consequence of the
    Gopalan doctrine was that the protection afforded by a guarantee of personal freedom
    would be decided by the object of the State action in relation to the right of the
    individual and not upon its effect upon the guarantee. Disagreeing with this view, the
    Court in Cooper held thus:
    “…it is necessary to bear in mind the enunciation of the guarantee of fundamental rights
    which has taken different forms. In some cases it is an express declaration of a
    guaranteed right: Articles
    29(1), 30(1), 26, 25 and 32; in others to ensure protection of individual rights they take
    specific forms of restrictions on State action — legislative or executive — Articles 14,
    15, 16, 20, 21,
    22(1), 27 and 28; in some others, it takes the form of a positive declaration and
    simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in
    some cases, it arises as an
    implication from the delimitation of the authority of the State, e.g. Articles 31(1) and
    31(2); in still others, it takes the form of a general prohibition against the State as well as
    others: Articles 17, 23 and 24. The enunciation of rights either express or by implication
    does not follow a uniform pattern. But one thread runs through them: they seek to protect
    the rights of the individual or groups of individuals against infringement of those rights
    within specific limits. Part III of the Constitution weaves a pattern of guarantees on the
    texture of basic human rights. The guarantees delimit the protection of those rights in
    their allotted fields: they do not attempt to enunciate distinct rights. “
    22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven judge
    Bench decision in Maneka. Justice P N Bhagwati who delivered the leading opinion
    287
    of three Judges held that the judgment in Cooper affirms the dissentingopinion of
    Justice Subba Rao (in Kharak Singh) as expressing the valid constitutional position.
    Hence in Maneka, the Court held that:
    “It was in Kharak Singh v. State of U.P.[AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963)
    2 Cri LJ 329] that the question as to the proper scope and meaning of the expression
    “personal liberty” came up pointedly for consideration for the first time before this
    Court. The majority of the Judges took the view “that “personal liberty” is used in the
    article as a 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 the 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 minority Judges, however, disagreed with this view taken by the majority
    and explained their position in the following words: “No doubt the expression ‘personal
    liberty’ is a comprehensive one and the right to move freely is an attribute of personal
    liberty. It is said that the freedom to move freely is carved out of personal liberty and,
    therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our
    view, this is not a correct approach. Both are independent fundamental rights, though
    there is overlapping. There is no question of one being carved out of another. The
    fundamental right of life and personal liberty has many attributes and some of them are
    found in Article 19. If a person’s fundamental right under Article 21 is infringed, the
    State can rely upon a law to sustain the action, but that cannot be a complete answer
    unless the said law satisfies the test laid down in Article 19(2) so far as the attributes
    covered by Article 19(1) are concerned.”
    There can be no doubt that in view of the decision of this Court in R.C. Cooper v.
    Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be
    regarded as correct and the majority view must be held to have been overruled.”25
26. Following the decision in Maneka, the established constitutional doctrine is that
    the expression ‘personal liberty’ in Article 21 covers a variety of rights, some of
    which ‘have been raised to the status of distinct fundamental rights’ and given
    additional protection under Article 19. […] The decision in Maneka carried the
    constitutional principle of the over-lapping nature of fundamental rights to its logical
    conclusion. Reasonableness which is the foundation of the guarantee against arbitrary
    state action under Article 14 infuses Article 21. A law which provides for a
    deprivation of life or personal liberty under Article 21 must lay down not just any
    procedure but a procedure which is fair, just and reasonable.
27. The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on
    the relationship between Articles 19 and 21, based on the view of the majority in
    Gopalan. This view stands abrogated particularly by the judgment in Cooper and the
    subsequent statement of doctrine in Maneka. The decision in Maneka, in fact,
    expressly recognized that it is the dissenting judgment of Justice Subba Rao in
    Kharak Singh which represents the exposition of the correct constitutional principle.
    The jurisprudential foundation which held the field sixty three years ago in MP
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    Sharma and fifty five years ago in Kharak Singh has given way to what is now a
    settled position in constitutional law. Firstly, the fundamental rights emanate from
    basic notions of liberty and dignity and the enumeration of some facets of liberty as
    distinctly protected rights under Article 19 does not denude Article 21 of its expansive
    ambit. Secondly, the validity of a law which infringes the fundamental rights has to be
    tested not with reference to the object of state action but on the basis of its effect on
    the guarantees of freedom. Thirdly, the requirement of Article 14 that state action
    must not be arbitrary and must fulfil the requirement of reasonableness, imparts
    meaning to the constitutional guarantees in Part III.
28. The decision in M P Sharma held that in the absence of a provision like the
    Fourth Amendment to the US Constitution, a right to privacy cannot be read into the
    Indian Constitution. The decision in M P Sharma did not decide whether a
    constitutional right to privacy is protected by other provisions contained in the
    fundamental rights including among them, the right to life and personal liberty under
    Article 21. Hence the decision cannot be construed to specifically exclude the
    protection of privacy under the framework of protected guarantees including those in
    Articles 19 or 21. The absence of an express constitutional guarantee of privacy still
    begs the question whether privacy is an element of liberty and, as an integral part of
    human dignity, is comprehended within the protection of life as well.
    Privacy as intrinsic to freedom and liberty
    113 The submission that recognising the right to privacy is an exercise which would
    require a constitutional amendment and cannot be a matter of judicial interpretation is
    not an acceptable doctrinal position. The argument assumes that the right to privacy is
    independent of the liberties guaranteed by Part III of the Constitution. There lies the
    error. The right to privacy is an element of human dignity. The sanctity of privacy lies
    in its functional relationship with dignity. Privacy ensures that a human being can
    lead a life of dignity by securing the inner recesses of the human personality from
    unwanted intrusion. Privacy recognises the autonomy of the individual and the right
    of every person to make essential choices which affect the course of life. In doing so
    privacy recognises that living a life of dignity is essential for a human being to fulfil
    theliberties and freedoms which are the cornerstone of the Constitution. To recognise
    the value of privacy as a constitutional entitlement and interest is not to fashion a new
    fundamental right by a process of amendment through judicial fiat. Neither are the
    judges nor is the process of judicial review entrusted with the constitutional
    responsibility to amend the Constitution. But judicial review certainly has the task
    before it of determining the nature and extent of the freedoms available to each person
    under the fabric of those constitutional guarantees which are protected. Courts have
    traditionally discharged that function and in the context of Article 21 itself, as we
    289
    have already noted, a panoply of protections governing different facets of a dignified
    existence has been held to fall within the protection of Article 21.
29. Now, would this Court in interpreting the Constitution freeze the content of
    constitutional guarantees and provisions to what the founding fathers perceived? The
    Constitution was drafted and adopted in a historical context. The vision of the
    founding fathers was enriched by the histories of suffering of those who
    sufferedoppression and a violation of dignity both here and elsewhere. Yet, it would
    be difficult to dispute that many of the problems which contemporary societies face
    would not have been present to the minds of the most perspicacious draftsmen. No
    generation, including the present, can have a monopoly over solutions or the
    confidence in its ability to foresee the future. As society evolves, so must
    constitutional doctrine. The institutions which the Constitution has created must adapt
    flexibly to meet the challenges in a rapidly growing knowledge economy. Above all,
    constitutional interpretation is but a process in achieving justice, liberty and dignity to
    every citizen.
30. The judgments rendered by all the four judges constituting the majority in ADM
    Jabalpur are seriously flawed. Life and personal liberty are inalienable to human
    existence. These rights are, as recognised in Kesavananda Bharati, primordial
    rights. They constitute rights under natural law. The human element in the life of the
    individual is integrally founded on the sanctity of life. Dignity is associated with
    liberty and freedom. No civilized state can contemplate an encroachment upon life
    and
    personal liberty without the authority of law. Neither life nor liberty are bounties
    conferred by the state nor does the Constitution create these rights. The right to life
    has existed even before the advent of the Constitution. In recognising the right, the
    Constitution does not become the sole repository of the right. It would be
    preposterous to suggest that a democratic Constitution without a Bill of Rights would
    leave individuals governed by the state without either the existence of the right to
    liveor the means of enforcement of the right. The right to life being inalienable to
    each individual, it existed prior to the Constitution and continued in force under
    Article 372 of the Constitution. Justice Khanna was clearly right in holding that the
    recognition of the right to life and personal liberty under the Constitution does not
    denude the existence of that right, apart from it nor can there be a fatuous assumption
    that in adopting the Constitution the people of India surrendered the most precious
    aspect of the human persona, namely, life, liberty and freedom to the state on whose
    mercy these rights would depend. Such a construct is contrary to the basic foundation
    of the rule of law which imposes restraints upon the powers vested in the modern state
    when it deals with the liberties of the individual.
    290
31. A constitutional democracy can survive when citizens have an undiluted
    assurance that the rule of law will protect their rights and liberties against any
    invasion by the state and that judicial remedies would be available to ask searching
    questions and expect answers when a citizen has been deprived of these, most
    precious rights.The view taken by Justice Khanna must be accepted, and accepted in
    reverence for the strength of its thoughts and the courage of its convictions.
32. The submission that privacy has no accepted or defined connotation can be
    analysed with reference to the evolution of the concept in the literature on the subject.
    Some of the leading approaches which should be considered for an insight into the
    ambit and content of privacy:
    (i) Alan Westin defined four basic states of privacy which reflect on the nature and
    extent of the involvement of the individual in the public sphere. At the core is solitude
    – the most complete state of privacy involving the individual in an “inner dialogue
    with the mind and conscience”.314 The second state is the state of intimacy which
    refers not merely to intimate relations between spouses or partners but also between
    family, friends and colleagues. The third state is of anonymity where an individual
    seeks freedom from identification despite being in a public space. The fourth state is
    described as a state of reservation which is expressed as “the need to hold some
    aspects of ourselves back from others, either as too personal and sacred or as too
    shameful and profane to express”.
    (ii) Roger Clarke has developed a classification of privacy on Maslow’s pyramid of
    values. The values described in Maslow’s pyramid are: self-actualization, self esteem,
    love or belonging, safety and physiological or biological need. Clarke’s categories
    include (a) privacy of the person also known as bodily privacy. Bodily privacy is
    violated by compulsory extraction of samples of body fluids and body tissue and
    compulsory sterilization; (b) privacy of personal behaviour which is part of a private
    space including the home; (c) Privacy of personal communications which is expressed
    as the freedom of communication without interception or routine monitoring of one’s
    communication by others; (d) Privacy of personal data which is linked to the concept
    of informational privacy.
    (iii) Anita Allen has, in a 2011 publication, developed the concept of “unpopular
    privacy”. According to her, governments must design “unpopular” privacy laws and
    duties to protect the common good, even if privacy is being forced on individuals who
    may not want it. Individuals under this approach are not permitted to waive their
    privacy rights. Among the component elements which she notices are : (a) physical or
    spatial privacy – illustrated by the privacy in the home; (b) informational privacy
    291
    including information data or facts about persons or their communications; (c)
    decisional privacy which protects the right of citizens to make intimate choices about
    their rights from intrusion by the State; (d) proprietary privacy which relates to the
    protection of one’s reputation; (e) associational privacy which protects the right of
    groups with certain defined characteristics to determine whom they may include or
    exclude.
    Privacy has distinct connotations including (i) spatial control; (ii) decisional
    autonomy; and (iii) informational control. Spatial control denotes the creation of
    private spaces. Decisional autonomy comprehends intimate personal choices such as
    those governing reproduction as well as choices expressed in public such as faith or
    modes of dress. Informational control empowers the individual to use privacy as a
    shield to retain personal control over information pertaining to the person. With
    regard to informational privacy, it has been stated that : “…perhaps the most
    convincing conception is proposed by Helen Nissenbaum who argues that privacy is
    the expectation that information about a person will be treated appropriately. This
    theory of “contextual integrity” believes people do not want to control their
    information or become inaccessible as much as they want their information to be
    treated in accordance with their expectation (Nissenbaum 2004, 2010, 2011).”
    Integrated together, the fundamental notions of privacy have been depicted in a
    seminal article published in 2017 titled “A Typology of privacy”321 in the
    Universityof Pennsylvania Journal of International Law.
33. The nine primary types of privacy are[…]: (i) bodily privacy which reflects the
    privacy of the physical body. Implicit in this is the negative freedom of being able to
    prevent others from violating one’s body or from restraining the freedom of bodily
    movement; (ii) spatial privacy which is reflected in the privacy of a private space
    through which access of others can be restricted to the space; intimate relations and
    family life are an apt illustration of spatial privacy; (iii) communicational privacy
    which is reflected in enabling an individual to restrict access to communications or
    control the use of information which is communicated to third parties; (iv) proprietary
    privacy which is reflected by the interest of a person in utilising property as a means
    to shield facts, things or information from others; (v) intellectual privacy which is
    reflected as an individual interest in the privacy of thought and mind and the
    development of opinions and beliefs; (vi) decisional privacy reflected by an ability to
    make intimate decisions primarily consisting one’s sexual or procreative nature and
    decisions in respect of intimate relations; (vii) associational privacy which is reflected
    in the ability of the individual to choose who she wishes to interact with; (viii)
    behavioural privacy which recognises the privacy interests of a person even while
    conducting publicly visible activities. Behavioural privacy postulates that even when
    access is granted to others, the individual is entitled to control the extent of access and
    292
    preserve to herself a measure of freedom from unwanted intrusion; and (ix)
    informational privacy which reflects an interest in preventing information about the
    self from being disseminated and controlling the extent of access to information.
    M. Constituent Assembly and privacy: limits of originalist interpretation
34. The Constitution has evolved over time, as judicial interpretation, led to the
    recognition of specific interests and entitlements. These have been subsumed within
    the freedoms and liberties guaranteed by the Constitution. Article 21 has been
    interpreted by this Court to mean that life does not mean merely a physical existence.
    It includes all those faculties by which life is enjoyed. The ambit of ‘the procedure
    established by law’ has been interpreted to mean that the procedure must be fair, just
    and reasonable. The coalescence of Articles 14, 19 and 21 has brought into being a
    jurisprudence which recognises the inter-relationship between rights. That is how the
    requirements of fairness and non-discrimination animate both the substantive and
    procedural aspects of Article 21. These constitutional developments have taken place
    as the words of the Constitution have been interpreted to deal with new exigencies
    requiring an expansive reading of liberties and freedoms to preserve human rights
    under the rule of law. India’s brush with a regime of the suspension of life and
    personal liberty in the not too distant past is a grim reminder of how tenuous liberty
    can be, if the judiciary is not vigilant. The interpretation of the Constitution cannot be
    frozen byits original understanding. The Constitution has evolved and must
    continuously evolve to meet the aspirations and challenges of the present and the
    future. Nor can judges foresee every challenge and contingency which may arise in
    the future. This is particularly of relevance in an age where technology reshapes our
    fundamental understanding of information, knowledge and human relationships that
    was unknown even in the recent past. Hence as Judges interpreting the Constitution
    today, the Court must leave open the path for succeeding generations to meet the
    challenges to privacy that may be unknown today.
35. The impact of the decision in Cooper is to establish a link between the
    fundamental rights guaranteed by Part III of the Constitution. The immediate
    consequence of the decision is that a law which restricts the personal liberties
    contained in Article 19 must meet the test of permissible restrictions contemplated by
    Clauses 2 to 6 in relation to the fundamental freedom which is infringed. Moreover,
    since the fundamental rights are inter-related, Article 21 is no longer to be construed
    as a residue of rights which are not specifically enumerated in Article 19. Both sets of
    rights overlap and hence a law which affects one of the personal freedoms under
    Article 19 would, in addition to the requirement of meeting the permissible
    restrictions contemplated in clauses 2 to 6, have to meet the parameters of a valid
    ‘procedure
    293
    established by law’ under Article 21 where it impacts on life or personal liberty. The
    law would be assessed not with reference to its object but on the basis of its effect and
    impact on the fundamental rights. Coupled with the breakdown of the theory that the
    fundamental rights are water-tight compartments, the post Maneka jurisprudence
    infused the test of fairness and reasonableness in determining whether the ‘procedure
    established by law’ passes muster under Article 21. At a substantive level, the
    constitutional values underlying each article in the Chapter on fundamental rights
    animate the meaning of the others. This development of the law has followed a
    natural evolution. The basis of this development after all is that every aspect of the
    diverse guarantees of fundamental rights deals with human beings. Every element
    together with others contributes in the composition of the human personality. In the
    very nature of things, no element can be read in a manner disjunctive from the
    composite whole. The close relationship between each of the fundamental rights has
    led to the recognition of constitutional entitlements and interests. Some of them may
    straddle more than one, and on occasion several, fundamental rights. Yet others may
    reflect the core value upon which the fundamental rights are founded.
    […]Technology, as we experience it today is far different from what it was in the
    lives of the generation which drafted the Constitution. Information technology
    together with the internet and the social media and all their attendant applications
    have rapidly altered the course of life in the last decade. Today’s technology renders
    models of application of a few years ago obsolescent. Hence, it would be an injustice
    both to the draftsmen of the Constitution as well as to the document which they
    sanctified to constrict its interpretation to an originalist interpretation. Today’s
    problems have to be adjudged by a vibrant application of constitutional doctrine and
    cannot be frozen by a vision suited to a radically different society. We describe the
    Constitution as a living instrument simply for the reason that while it is a document
    which enunciates eternal values for Indian society, it possesses the resilience
    necessary to ensure its continued relevance.
    N. Is the statutory protection to privacy reason to deny a constitutional right?
36. The Union government and some of the States which have supported it have
    urged this Court that there is a statutory regime by virtue of which the right to privacy
    is adequately protected and hence it is not necessary to read a constitutional right to
    privacy into the fundamental rights. This submission is sought to be fortified by
    contending that privacy is merely a common law right and the statutory protection is a
    reflection of that position.
37. The submission betrays lack of understanding of the reason why rights are
    protected in the first place as entrenched guarantees in a Bill of Rights or, as in the
    case of the Indian Constitution, as part of the fundamental rights. Elevating a right to
    294
    the position of a constitutionally protected right places it beyond the pale of
    legislative majorities. When a constitutional right such as the right to equality or the
    right to life assumes the character of being a part of the basic structure of the
    Constitution, it assumes inviolable status: inviolability even in the face of the power
    of amendment. Ordinary legislation is not beyond the pale of legislative modification.
    A statutory right can be modified, curtailed or annulled by a simple enactment of the
    legislature. In other words, statutory rights are subject to the compulsion of legislative
    majorities. The purpose of infusing a right with a constitutional element is precisely to
    provide it a sense of immunity from popular opinion and, as its reflection, from
    legislative annulment. Constitutionally protected rights embody the liberal belief that
    personal liberties of the individual are so sacrosanct that it is necessary to ensconce
    them in a protective shell that places them beyond the pale of ordinary legislation. To
    negate a constitutional right on the ground that there is an available statutory
    protection is to invert constitutional theory. As a matter of fact, legislative protection
    is in many cases, an acknowledgment and recognition of a constitutional right which
    needs to be effectuated and enforced through protective laws. For instance, the
    provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an
    exemption from the disclosure of information refer to such information which would
    cause an unwarranted invasion of the privacy of the individual. But the important
    point to note is that when a right is conferred with an entrenched constitutional status
    in Part III, it provides a touchstone on which the validity of executive decision
    making can be assessed and the validity of law can be determined by judicial review.
    Entrenched constitutional rights provide the basis of evaluating the validity of law.
    Hence, it would be plainly unacceptable to urge that the existence of law negates the
    rationale for a constitutional right or renders the constitutional right unnecessary.
    O. Not an elitist construct
38. The Attorney General argued before us that the right to privacy must be
    forsaken in the interest of welfare entitlements provided by the State. In our view, the
    submission that the right to privacy is an elitist construct which stands apart from the
    needs and aspirations of the large majority constituting the rest of society, is
    unsustainable. This submission betrays a misunderstanding of the constitutional
    position. Our Constitution places the individual at the forefront of its focus,
    guaranteeing civil and political rights in Part III and embodying an aspiration for
    achieving socio- economic rights in Part IV. The refrain that the poor need no civil
    and political rights and are concerned only with economic well-being has been
    utilized though history to wreak the most egregious violations of human rights. Above
    all, it must be realised that it is the right to question, the right to scrutinize and the
    right to dissent which enables an informed citizenry to scrutinize the actions of
    government. Those who are governed are entitled to question those who govern,
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    about the discharge of their constitutional duties including in the provision of socioeconomic welfare benefits. The power to scrutinize and to reason enables the citizens
    of a democratic polity to make informed decisions on basic issues which govern their
    rights. The theory that civil and political rights are subservient to socio-economic
    rights has been urged in the past and has been categorically rejected in the course of
    constitutional adjudication by this Court.
39. Civil and political rights and socio-economic rights do not exist in a state of
    antagonism. The conditions necessary for realising or fulfilling socio-economic rights
    do not postulate the subversion of political freedom […].
40. We need also emphasise the lack of substance in the submission that privacy is a
    privilege for the few. Every individual in society irrespective of social class or
    economic status is entitled to the intimacy and autonomy which privacy protects. It is
    privacy as an intrinsic and core feature of life and personal liberty which enables an
    individual to stand up against a programme of forced sterilization. Then again, it is
    privacy which is a powerful guarantee if the State were to introduce compulsory drug
    trials of non-consenting men or women. The sanctity of marriage, the liberty of
    procreation, the choice of a family life and the dignity of being are matters which
    concern every individual irrespective of social strata or economic well being. The
    pursuit of happiness is founded upon autonomy and dignity. Both are essential
    attributes of privacy which makes no distinction between the birth marks of
    individuals.
    R. Essential nature of privacy
41. What, then, does privacy postulate? Privacy postulates the reservation of a
    private space for the individual, described as the right to be let alone. The concept is
    founded on the autonomy of the individual. The ability of an individual to make
    choices lies at the core of the human personality. The notion of privacy enables the
    individual is not judged by others. Privacy enables each individual to take crucial
    decisions which find expression in the human personality. It enables individuals to
    preserve their
    beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against
    societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity,
    of the right of the individual to be different and to stand against the tide of conformity
    in creating a zone of solitude. Privacy protects the individual from the searching glare
    of publicity in matters which are personal to his or her life. Privacy attaches to the
    person and not to the place where it is associated. Privacy constitutes the foundation
    of all liberty because it is in privacy that the individual can decide how liberty is best
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    exercised. Individual dignity and privacy are inextricably linked in a pattern woven
    out of a thread of diversity into the fabric of a plural culture.
42. Privacy of the individual is an essential aspect of dignity. Dignity has both an
    intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement
    or a constitutionally protected interest in itself. In its instrumental facet, dignity and
    freedom are inseparably inter-twined, each being a facilitative tool to achieve the
    other. The ability of the individual to protect a zone of privacy enables the realization
    of the full value of life and liberty. Liberty has a broader meaning of which privacy is
    a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only
    within a private space. Privacy enables the individual to retain the autonomy of the
    body and mind. The autonomy of the individual is the ability to make decisions on
    vital matters of concern to life. Privacy has not been couched as an independent
    fundamental right. But that does not detract from the constitutional protection
    afforded to it, once the true nature of privacy and its relationship with those
    fundamental rights which are expressly protected is understood. Privacy lies across
    the spectrum of protected freedoms. The guarantee of equality is a guarantee against
    arbitrary state action. It prevents the state from discriminating between individuals.
    The destruction by the state of a sanctified personal space whether of the body or of
    the mind is violative of the guarantee against arbitrary state action. Privacy of the
    body entitles an individual to the integrity of the physical aspects of personhood. The
    intersection between one’s mental integrity and privacy entitles the individual to
    freedom of thought, the freedom to believe in what is right, and the freedom of selfdetermination. When these guarantees intersect with gender, they create a private
    space which protects all those elements which are crucial to gender identity. The
    family, marriage, procreation and sexual orientation are all integral to the dignity of
    the individual. Above all, the privacy of the individual recognises an inviolable right
    to determine how freedom shall be exercised. An individual may perceive that the
    best form of expression is to remain silent. Silence postulates a realm of privacy. An
    artist finds reflection of the soul in a creative endeavour. A writer expresses the
    outcome of a process of thought. A musician contemplates upon notes which
    musically lead to silence. The silence, which lies within, reflects on the ability to
    choose how to convey thoughts and ideas or interact with others. These are crucial
    aspects of personhood. The freedoms under Article 19 can be fulfilled where the
    individual is entitled to decide upon his or her preferences. Read in conjunction with
    Article 21, liberty enables the individual to have a choice of preferences on various
    facets of life including what and how one will eat, the way one will dress, the faith
    one will espouse and a myriad other matters on which autonomy and selfdetermination require a choice to be made within the privacy of the mind. The
    constitutional right to the freedom of religion under Article 25 has implicit within it
    the ability to choose a faith and the freedom to express or not express those choices to
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    the world. These are some illustrations of the manner in which privacy facilitates
    freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a
    separate article telling us that privacy has been declared to be a fundamental right.
    Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy:
    this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both
    reside within the inalienable values of life, liberty and freedom which the Constitution
    has recognised. Privacy is the ultimate expression of the sanctity of the individual. It
    is a constitutional value which straddles across the spectrum of fundamental rights
    and protects for the individual a zone of choice and self-determination.
    Privacy represents the core of the human personality and recognizes the ability of
    each individual to make choices and to take decisions governing matters intimate and
    personal. Yet, it is necessary to acknowledge that individuals live in communities and
    work in communities. Their personalities affect and, in turn are shaped by their social
    environment. The individual is not a hermit. The lives of individuals are as much a
    social phenomenon. In their interactions with others, individuals are constantly
    engaged in behavioural patterns and in relationships impacting on the rest of society.
    Equally, the life of the individual is being consistently shaped by cultural and social
    values imbibed from living in the community. This state of flux which represents a
    constant evolution of individual personhood in the relationship with the rest of society
    provides the rationale for reserving to the individual a zone of repose. The lives which
    individuals lead as members of society engender a reasonable expectation of privacy.
    The notion of a reasonable expectation of privacy has elements both of a subjective
    and objective nature. Privacy at a subjective level is a reflection of those areas where
    an individual desire to be left alone. On an objective plane, privacy is defined by
    those constitutional values which shape the content of the protected zone where the
    individual ought to be left alone. The notion that there must exist a reasonable
    expectation of privacy ensures that while on the one hand, the individual has a
    protected zone of privacy, yet on the other, the exercise of individual choices is
    subject to the rights of others to lead orderly lives. For instance, an individual who
    possesses a plot of land may decide to build upon it subject to zoning regulations. If
    the building bye laws define the area upon which construction can be raised or the
    height of the boundary wall around the property, the right to privacy of the individual
    is conditioned by regulations designed to protect the interests of the community in
    planned spaces. Hence while the individual is entitled to a zone of privacy, its extent
    is based not only on the subjective expectation of the individual but on an objective
    principle which defines a reasonable expectation.
    S. Informational privacy
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43. The age of information has resulted in complex issues for informational privacy.
    These issues arise from the nature of information itself. Information has three facets:
    it is non rivalrous, invisible and recombinant. Information is non rivalrous in the sense
    that there can be simultaneous users of the good – use of a piece of information by
    one person does not make it less available to another. Secondly, invasions of data
    privacy are difficult to detect because they can be invisible. Information can be
    accessed, stored and disseminated without notice. Its ability to travel at the speed of
    light enhances the invisibility of access to data, “information collection can be the
    swiftest theft of all”. Thirdly, information is recombinant in the sense that data output
    can be used as an input to generate more data output.
44. The balance between data regulation and individual privacy raises complex
    issues requiring delicate balances to be drawn between the legitimate concerns of the
    State on one hand and individual interest in the protection of privacy on the other.
45. The sphere of privacy stretches at one end to those intimate matters to which a
    reasonable expectation of privacy may attach. It expresses a right to be left alone. A
    broader connotation which has emerged in academic literature of a comparatively
    recent origin is related to the protection of one’s identity. Data protection relates
    closely with the latter sphere. Data such as medical information would be a category
    to which a reasonable expectation of privacy attaches. There may be other data which
    falls outside the reasonable expectation paradigm. Apart from safeguarding privacy,
    data protection regimes seek to protect the autonomy of the individual. This is evident
    from the emphasis in the European data protection regime on the centrality of
    consent. Related to the issue of consent is the requirement of transparency which
    requires a disclosure by the data recipient of information pertaining to data transfer
    and use.
46. Another aspect which data protection regimes seek to safeguard is the principle
    of non discrimination which ensures that the collection of data should be carried out
    in a manner which does not discriminate on the basis of racial or ethnic origin,
    political or religious beliefs, genetic or health status or sexual orientation.
47. Formulation of a regime for data protection is a complex exercise which needs to
    be undertaken by the State after a careful balancing of the requirements of privacy
    coupled with other values which the protection of data sub-serves together with the
    legitimate concerns of the State.
48. While it intervenes to protect legitimate state interests, the state must
    nevertheless put into place a robust regime that ensures the fulfilment of a three-fold
    requirement. These three requirements apply to all restraints on privacy (not just
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    informational privacy). They emanate from the procedural and content-based mandate
    of Article 21. The first requirement that there must be a law in existence to justify an
    encroachment on privacy is an express requirement of Article 21. For, no person can
    be deprived of his life or personal liberty except in accordance with the procedure
    established by law. The existence of law is an essential requirement. Second, the
    requirement of a need, in terms of a legitimate state aim, ensures that the nature and
    content of the law which imposes the restriction falls within the zone of
    reasonableness mandated by Article 14, which is a guarantee against arbitrary state
    action. The pursuit of a legitimate state aim ensures that the law does not suffer
    frommanifest arbitrariness. Legitimacy, as a postulate, involves a value judgment.
    Judicial review does not re-appreciate or second guess the value judgment of the
    legislature but is for deciding whether the aim which is sought to be pursued suffers
    from palpable or manifest arbitrariness. The third requirement ensures that the means
    which are adopted by the legislature are proportional to the object and needs sought to
    be fulfilled by the law. Proportionality is an essential facet of the guarantee against
    arbitrary state action because it ensures that the nature and quality of the
    encroachment on the right is not disproportionate to the purpose of the law. Hence,
    the three-fold requirement for a valid law arises out of the mutual inter-dependence
    between the fundamental guarantees against arbitrariness on the one hand and the
    protection of life and personal liberty, on the other. The right to privacy, which is an
    intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is
    subject to the same restraints which apply to those freedoms.
    181 Apart from national security, the state may have justifiable reasons for the
    collection and storage of data. In a social welfare state, the government embarks upon
    programmes which provide benefits to impoverished and marginalised sections of
    society. There is a vital state interest in ensuring that scarce public resources are not
    dissipated by the diversion of resources to persons who do not qualify as recipients.
    Allocation of resources for human development is coupled with a legitimate concern
    that the utilisation of resources should not be siphoned away for extraneous purposes.
    Data mining with the object of ensuring that resources are properly deployed to
    legitimate beneficiaries is a valid ground for the state to insist on the collection of
    authentic data. But, the data which the state has collected has to be utilised for
    legitimate purposes of the state and ought not to be utilised unauthorizedly for
    extraneous purposes. This will ensure that the legitimate concerns of the state are duly
    safeguarded while, at the same time, protecting privacy concerns. Prevention and
    investigation of crime and protection of the revenue are among the legitimate aims of
    the state. Digital platforms are a vital tool of ensuring good governance in a social
    welfare state. Information technology – legitimately deployed is a powerful enabler in
    the spread of innovation and knowledge.
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49. Privacy has been held to be an intrinsic element of the right to life and personal
    liberty under Article 21 and as a constitutional value which is embodied in the
    fundamental freedoms embedded in Part III of the Constitution. Like the right to life
    and liberty, privacy is not absolute. The limitations which operate on the right to life
    and personal liberty would operate on the right to privacy. Any curtailment or
    deprivation of that right would have to take place under a regime of law. The
    procedure established by law must be fair, just and reasonable. The law which
    provides for the curtailment of the right must also be subject to constitutional
    safeguards.
    T. Our Conclusions
50. The judgment in MP Sharma holds essentially that in the absence of a provision
    similar to the Fourth Amendment to the US Constitution, the right to privacy
    cannotbe read into the provisions of Article 20 (3) of the Indian Constitution. The
    judgment does not specifically adjudicate on whether a right to privacy would arise
    from any of the other provisions of the rights guaranteed by Part III including Article
    21 and
    Article 19. The observation that privacy is not a right guaranteed by the Indian
    Constitution is not reflective of the correct position. MP Sharma is overruled to the
    extent to which it indicates to the contrary.
51. Kharak Singh has correctly held that the content of the expression ‘life’ under
    Article 21 means not merely the right to a person’s “animal existence” and that the
    expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a
    person’s home or an intrusion into personal security. Kharak Singh also correctly
    laid down that the dignity of the individual must lend content to the meaning of
    ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated
    domiciliary visits at night on the ground that they violated ordered liberty is
    animplicit recognition of the right to privacy. The second part of the decision,
    however, which holds that the right to privacy is not a guaranteed right under our
    Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s
    reliance upon the decision of the majority in Gopalan is not reflective of the correct
    position in view of the decisions in Cooper and in Maneka. Kharak Singh to the
    extent that it holds that the right to privacy is not protected under the Indian
    Constitution is overruled.
52. (A) Life and personal liberty are inalienable rights. These are rights which are
    inseparable from a dignified human existence. The dignity of the individual, equality
    between human beings and the quest for liberty are the foundational pillars of the
    Indian Constitution;
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    (B) Life and personal liberty are not creations of the Constitution. These rights are
    recognised by the Constitution as inhering in each individual as an intrinsic and
    inseparable part of the human element which dwells within;
    (C) Privacy is a constitutionally protected right which emerges primarily from the
    guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
    privacy also arise in varying contexts from the other facets of freedom and dignity
    recognised and guaranteed by the fundamental rights contained in Part III;
    (D) Judicial recognition of the existence of a constitutional right of privacy is not an
    exercise in the nature of amending the Constitution nor is the Court embarking on a
    constitutional function of that nature which is entrusted to Parliament;
    (E) Privacy is the constitutional core of human dignity. Privacy has both a normative
    and descriptive function. At a normative level privacy sub-serves those eternal values
    upon which the guarantees of life, liberty and freedom are founded. At a descriptive
    level, privacy postulates a bundle of entitlements and interests which lie at the
    foundation of ordered liberty;
    (F) Privacy includes at its core the preservation of personal intimacies, the sanctity of
    family life, marriage, procreation, the home and sexual orientation. Privacy also
    connotes a right to be left alone. Privacy safeguards individual autonomy and
    recognises the ability of the individual to control vital aspects of his or her life.
    Personal choices governing a way of life are intrinsic to privacy. Privacy protects
    heterogeneity and recognises the plurality and diversity of our culture. While the
    legitimate expectation of privacy may vary from the intimate zone to the private zone
    and from the private to the public arenas, it is important to underscore that privacy is
    not lost or surrendered merely because the individual is in a public place. Privacy
    attaches to the person since it is an essential facet of the dignity of the human being;
    (G) This Court has not embarked upon an exhaustive enumeration or a catalogue of
    entitlements or interests comprised in the right to privacy. The Constitution must
    evolve with the felt necessities of time to meet the challenges thrown up in a
    democratic order governed by the rule of law. The meaning of the Constitution cannot
    be frozen on the perspectives present when it was adopted. Technological change has
    given rise to concerns which were not present seven decades ago and the rapid growth
    of technology may render obsolescent many notions of thepresent. Hence the
    interpretation of the Constitution must be resilient and flexible to allow future
    generations to adapt its content bearing in mind its basic or essential features;
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    (H) Like other rights which form part of the fundamental freedoms protected by Part
    III, including the right to life and personal liberty under Article 21, privacy is not an
    absolute right. A law which encroaches upon privacy will have to withstand the
    touchstone of permissible restrictions on fundamental rights. In the context of Article
    21 an invasion of privacy must be justified on the basis of a law which stipulates a
    procedure which is fair, just and reasonable. The law must also be valid with
    reference to the encroachment on life and personal liberty under Article 21. An
    invasion of life or personal liberty must meet the three-fold requirement of (i) legality,
    which postulates the existence of law; (ii) need, defined in terms of a legitimate state
    aim; and (iii) proportionality which ensures a rational nexus between the objects and
    the means adopted to achieve them; and
    (I) Privacy has both positive and negative content. The negative content restrains the
    state from committing an intrusion upon the life and personal liberty of a citizen. Its
    positive content imposes an obligation on the state to take all necessary measures to
    protect the privacy of the individual.
53. Decisions rendered by this Court subsequent to Kharak Singh, upholding the right
    to privacy would be read subject to the above principles.
54. Informational privacy is a facet of the right to privacy. The dangers to privacy in an
    age of information can originate not only from the state but from non-state actors as
    well. We commend to the Union Government the need to examine and put into place
    a robust regime for data protection. The creation of such a regime requires a careful
    and sensitive balance between individual interests and legitimate concerns of the
    state. The legitimate aims of the state would include for instance protecting national
    security, preventing and investigating crime, encouraging innovation and the spread
    of knowledge, and preventing the dissipation of social welfare benefits. These are
    matters of policy to be considered by the Union government while designing a
    carefully structured regime for the protection of the data. Since the Union government
    has informed the Court that it has constituted a Committee chaired by Hon’ble Shri
    Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall
    be dealt with appropriately by the Union government having due regard to what has
    been set out in this judgment.