Justice A M Sapre
In substance, two questions were referred to this Nine Judge Bench, first, whether the law laid down in the case of M.P. - Sharma and others vs. Satish Chandra, District Magistrate Delhi & Ors., and Kharak Singh vs. State of Uttar Pradesh & Ors. insofar as it relates to the “right to privacy of an individual” is correct and second, whether “right to privacy” is a fundamental right under Part III of the Constitution of India.
Our Constitution has recognized certain existing cherished rights of an individual. These rights are incorporated in different Articles of Part III of the Constitution under the heading: Fundamental Rights. In so doing, some rights were incorporated and those, which were not incorporated, were read in Part III by process of judicial interpretation depending upon the nature of right asserted by the citizens on case-to-case basis.
It was not possible for the framers of the Constitution to incorporate each and every right, be that a natural or common law right of an individual in Part III of the Constitution. Indeed, as we can see whenever occasion arose in the last 50 years to decide as to whether any particular right alleged by the citizen is a fundamental right or not, this Court with the process of judicial interpretation recognised with remarkable clarity several existing natural and common law rights of an individual as fundamental rights falling in Part III though not defined in the Constitution. It was done keeping in view the fact that the Constitution is a sacred living document and, hence, susceptible to appropriate interpretation of its provisions based on changing needs of “We, the People” and other well defined parameters.
In my considered opinion, the two questions referred herein along with few incidental questions arising therefrom need to be examined carefully in the light of law laid down by this Court in several decided cases. Indeed, the answer to the questions can be found in the law laid down in the decided cases of this Court alone and one may not require taking the help of the law laid down by the American Courts.
It is true that while interpreting our laws, the English decisions do guide us in reaching to a particular conclusion arising for consideration. The law reports also bear the testimony that this Court especially in its formative years has taken the help of English cases for interpreting the provisions of our Constitution and other laws
In my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being
One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilized society governed by rule of law always recognises in every human being and is under obligation to recognize such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed. It is, of course, subject to imposing certain reasonable restrictions keeping in view the social, moral and compelling public interest, which the State is entitled to impose by law.
“Right to privacy” is not defined in law except in the dictionaries. The Courts, however, by process of judicial interpretation, has assigned meaning to this right in the context of specific issues involved on caseto-case basis.
The most popular meaning of “right to privacy” is — “the right to be let alone”. In Go bind vs. State of Madhya Pradesh& Anr ., (1975), K.K. Mathew, J. noticed multiple facets of this right and then gave a rule of caution while examining the contours of such right on case-to-case basis
I do not find any difficulty in tracing the “right to privacy “emanating from the two expressions of the Preamble namely, “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual” and also emanating from Article 19 (1)(a) which gives to every citizen “a freedom of speech and expression” and further emanating from Article 19(1)(d) which gives to every citizen “a right to move freely throughout the territory of India” and lastly, emanating from the expression “personal liberty” under Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them and in juxtaposition
In view of foregoing discussion, my answer to question No. 2 is that “right to privacy” is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law.
Similarly, I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.