Justice S A Bobde

This reference calls onus to answer questions that would goto the very heart of the liberty and freedom protected by the Constitution of India. It arises in the context of a constitutional challenge to the Aadhaar project, which aims to build a database of personal identity and biometric information covering every Indian – the world’s largest endeavour of its kind. To the Petitioners’ argument therein that Aadhaar would violate the right to privacy, the Union of India, through its Attorney General, raised the objection that Indians could claim no constitutional right of privacy in view of a unanimous decision of 8 Judge soft his Court in M.P. Sharma v. Satish Chandra and a decision by a majority of 4 Judges in Kharak Singh v. State of Uttar Pradesh

In view of the foregoing, I answer the reference before us in the following terms: a. The ineluctable conclusion must be that an inalienable constitutional right to privacy inheres in Part III of the Constitution. M.P. S harm a and the majority opinion in K ha rak Singh must stand overruled to the extent that they indicate to the contrary.

b. The right to privacy is inextricably bound up with all exercises of human liberty –both asitis specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails. c. Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.

It might be broadly necessary to determine the nature and content of privacy in order to consider the extent of its constitutional protection. As in the case of‘ life’ under Article 21, a precise definition of the term ‘privacy’ may not be possible. This difficulty need not detain us. Definition al and boundary- setting challenges are not unique to the rights guaranteed in Article 21. This feature is integral to many core rights, such as the right to equality. Evidently, the expansive character of any right central to constitutional democracies like ours has nowhere stood in the way of recognizing a right and treating it as fundamental where there are strong constitutional grounds to do so.

The existence of zones of privacy is felt instinctively by all civilised people, without exception. The best evidence for this lies in the panoply of activities through which we all express claims to privacy in our daily lives. We lock our doors, clothe our bodies and set passwords to our computers and phones to signal that we intend for our places, persons and virtual lives to be private.

‘Privacy’ is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” The right to be in this condition has been described as ‘the right to be let alone’. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including pee ping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.

The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities which are virtually in capable of being performed at allan din many cases with dignity unless an individual is left alone or is otherwise em powered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilised people. Privacy is thus one of those rights “instrument ally required if one is to enjoy”33 rights specified and enumerated in the constitutional text.

The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same. It has also always been an integral part of the right to own property and has been treated as such in civil law as well as in criminal law vide all the offences and torts of trespass known to law.

Therefore, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us.

THE FIRST AND NATURAL HOME FOR A RIGHT OF PRIVACY IS IN ARTICLE 21 AT THE VERY HEART OF ‘PERSONAL LIBERTY’ AND LIFE ITSELF