Justice J Chelameshwar
The following three questions, in my opinion, constitute the crux of the enquiry; (i) Is there any Fundamental Right to Privacy under the Constitution of India? (ii) If it exists, where is it located? (iii) What are the contours of such Right?
These questions arose because Union of India and some of the respondents took a stand that, in view of two larger bench judgments of this Court, no fundamental right of privacy is guaranteed under the Constitution. To embrace a rule that the text of the Constitution is the only material to be looked at to understand the purpose and scheme of the Constitution would not only be detrimental to liberties of SUBJECTS but could also render the administration of the State unduly cumbersome.
This Court by an interpretive process read the right to earn a livelihood, the right to education, right to speedy trial, the right to protect one’s reputation and the right to have an environment free of pollution in the expression ‘life’ under Article 21 of the Indian Constitution. Similarly, the right to go abroad and the right to speedy trial of criminal cases were read into the expression liberty occurring under Article 21. This court found delayed execution of capital punishment violated both the rights of life and ‘liberty’ guaranteed under Article 21 and also perceived reproductive rights and the individual’s autonomy regarding sterilization to being inherent in the rights of life and liberty under Article. 21.
None of the above-mentioned rights are to be found anywhere in the text of the Constitution. To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled cannons of constitutional interpretation. Such an approach regarding the rights and liberties of citizens would be an affront to the collective wisdom of our people and the wisdom of the members of the Constituent Assembly.
It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the bar. Therefore, even a fundamental right to privacy has limitations. The limita- tions are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution’s liberty guarantee to contain a fundamental right of privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited. I only do this to indicate the direction of debate as the nature of limitation is not at issue here.
At the very outset, if a privacy claim specifically flows only from one of the expressly enumerated provisions under Article 19, then the standard of review would be as expressly provided under Article 19. However, the possibility of a privacy claim being entirely traceable to rights other than Article 21 is bleak. Without discounting that possibility, it needs to be noted that Article 21 is the bedrock of the privacy guarantee. If the spirit of liberty permeates every claim of privacy, it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies. It is for this reason that I will restrict the options to the latter two from the above described four.
From the United States where the terminology of ‘compelling state interest’ originated, a strict standard of scrutiny comprises two things - a ‘compelling state interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases. However, this discussion sets the ground rules within which a limitation for the right of privacy is to be found.