Fundamental Rights

1. Fundamental Rights

Introduction: Fundamental rights are those rights which are regarded as

fundamental in every democratic system of government. They are so regarded

because they are vitally necessary for the attainment by the individual of his full

moral and spiritual stature. Without these rights, the individual’s moral and

spiritual life would remain stunted, and he would not be able to develop his

potentialities.

The constitution of India has embodied a number of Fundamental rights, which are

to act as limitations not only upon the powers of the legislature, but though the

model has been taken from the constitution of the United States, Indian

Constitution does not go so far, and rather effects a compromise between the

doctrine of Parliamentary Sovereignty and Judicial supremacy. On one hand, the

parliament of India cannot said to be sovereign in the English sense of legal

omnipotence, for the very fact that the parliament is created and limited by a

written constitution enables our parliament to legislate only subject to the

limitations and prohibition imposed by the constitution. If the distribution of

legislative powers etc., in case any of these limitations are transgressed, the

Supreme Court and the High Courts are competent to declare a law as

unconstitutional and void. So far as the contravention of fundamental rights is

concerned, the duty is especially enjoined upon the courts by the constitution, by

way of abundant caution. To this extent, our constitution follows the American

model rather than the English. But the powers of the judiciary vis-à-vis the

legislature are weaker in India than in the united states.

State u/Art 12

“The state” includes the government and parliament of India and the government

and the legislature of each of the states and all local or other authorities within the

territory of India or under the control of the government of India.

(i) Agency outside India – an instrumentality or agency of the state having

(ii) BCCI – BCCI is not financially, functionally or administratively

(iii) Cooperative Societies – The cooperative societies are not created by the

operations outside India must comply with labour legislation; Lena Khan

vs UOI: AIR 1987 SC 1515.

dominated by government not it is under control of government,

therefore not a state; Zee Telefilms ltd. vs UOI: AIR 2005 SC 2677.

Co-operative Societies Act, 1912 and they are not statutory bodies. They

are only functioning in accordance with the provisions of the act.

Moreover, the government has no shares in the cooperative societies.

There is no deep and pervasive state control. The management of the

societies does not vest in the government, or in the representatives of the

government bank. The management is, under the effective control of

committee elected by the members of the society. The statutory

(iv) Examples of authorities held to be state – The state bank of India as also

regulation or restriction in the functioning of the societies is not “an

imprint of the state u/Art. 12”. Hence no writ will lie against a

cooperative society governed by the Kerala Cooperative Societies Act; P.

Bhaskaranvs Additional Secretary, Agricultural (Co-operation)

Department, Trivandrum, AIR 1988 Ker 75.

the nationalized banks are ‘states’ within the meaning of Art. 12 of the

Constitution of India. The service of the workmen are also governed by

several standing orders and bipartite settlements which have the force of

law. The banks, therefore, cannot take recourse to ‘hire and fire’ for the

purpose of terminating the services of the employees; Bank of India vs

O.P. Swaranakar, AIR 2003 SC 858.

The children aid society should be treated as a state within the meaning

of Art. 12 as it is undoubtedly an instrumentality of state; SheelaBarsevs

Secretary, Children Aid Society: AIR 1987 SC 656.

This is inevitable consequence of “other authorities” being entities with

independent status distinct from the state and this fact alone does not

militate against such entities or institutions being agencies or

instrumentalities to come under the net of Art. 12 of the Constitution;

Mysore Paper Mills Ltd. vs Mysore Paper Mills officers Association:

(2002) 2 SCC 167.

The Rajasthan State Electricity Board is ‘state’ within the meaning of the

expression used in Art. 12 of the constitution so that it is amendable to

the writ jurisdiction u/Art.226 of the constitution; D.C.M. ltd. vs

Assistant Engineer (H.M.T. sub-division), Rajasthan State Electricity

Board, Kota, AIR 1988 Raj. 64.

There are tests formulated by several cases of the SC to find out whether

an institution is a ‘state’. There cannot indeed be a straight jacket

formula. It is not necessary that all the tests should be satisfied or

reaching the conclusion either for or against holding an institution to be

‘state’. In a given case, some of the features may emerge so boldly and

prominently that a second view may not be possible. There may yet be

other cases where the matter would be on the borderline and it would be

difficult to take one or other view outright; Tekrajvs UOI: AIR 1988 SC

469.

2. Other Authorities u/Art. 12

Judicial decisions have given a wide scope to the expression “other authorities” in

Article 12. The main theory evolved is that of “instrumentality or agency” of

government. This is a concept wider than a “department of the government”. It

embraces every public authority exercising statutory powers, every authority

created under statute and even a non-statutory authority exercising public

functions.

What is, and what is not a “state” has been the subject matter of rich case law

u/Art. 12. From the numerous decisions on the subject, a judgment of the Andhra

Pradesh HC has culled out certain propositions; (1987) 4 Reports 198(AP), decided

on 23rd January, 1987 (WP no. 3065/1978). The judgment says that the essential

tests to determine whether a particular institution is “other authority” within the

meaning of Article 12 are substantial financial aid, control by the government,

performance of public functions and entrustment of governmental activities. All of

these are not essential, and in a particular case, one or a combination of more than

one of them may suffice. In the leading case of Ajay Hasiavs Khalid Mujib, AIR

1981 SC 487, the regional engineering college was held to be a “state”.

P.N.Bhagwati, J. observed as under in that case:

“the constitutional philosophy of a democratic socialist

republic requires the government to undertake a multitude of

socio-economic operations and the government, having regard to

the practical advantages of functioning through the legal device

of a corporation embarks on myriad commercial and economic

activities by resorting to the instrumentality or agency of a

corporation, but this contrivance of carrying on such activities

through a corporation cannot exonerate the government from its

basic obligation to respect the fundamental rights and not to

override them. The mandate of a corporation may be adopted in

order to free the government from the inevitable constrains of red

tapism and slow motion but by doing so, the government cannot

be allowed to play truant with the basic human rights. Otherwise,

it would be the easiest thing for the government to assign to a

plurality of corporations almost every state business such as post

and telegraph, TV and radio, rail, road and telephones – in short

every economic activity – and thereby cheat the people of India

out of the fundamental rights guaranteed to them”

In the above judgment of the SC J. Bhagwati enunciated the following test for

determining whether an entity is an instrumentality or agency of the state:-

1. One thing is clear that if the entire share capital of the corporation is held by

the government, it would go a long way towards indicating that the

corporation is an instrumentality or agency or government.

2. Where the financial assistance of the state is so much as to meet almost

entire expenditure of the corporation, it would afford some indication of the

corporation being impregnated with governmental character,

3. It may also be a relevant factor whether the corporation enjoys monopoly

status which is the state conferred or state protected.

4. Existence of deep and pervasive state control may afford an indication that

the corporation is a state agency or instrumentality.

5. If the functions of the corporation of public importance and closely related

to governmental functions, it would be a relevant factor in classifying the

corporation as a instrumentality or agency of government.

6. Specifically, if a department of government is transferred to a corporation, it

would be a strong factor supportive of this interference of the corporation

being an instrumentality or agency of government.

The Delhi Transport Corporation is a “state” as decided in DTC vsMazdoor

Congress, AIR 1991 SC 101.

In Chanana Steel Tubes Pvt. Ltd. Vs H.P.S.I.D.C., AIR 2003 HP 36, it was held

that when ‘company’ is a wholly state government owned company incorporated

under the companies act, 1956, government has got pervasive control over this

company. Its managing director is appointed by the state government, as also other

officials are also appointed as directors. Thus, it is an “other authority’, within the

meaning of article 12.

Relevant case laws are :

(i) SomPrakashvs UOI: AIR 1981 SC 212

(ii) Tajinder Singh vs Bharat Petroleum Corp. Ltd.: (1986) 4 SCC 237

(iii) State of Punjab vs Raja Ram: (1981) 2 SCC 66

(iv) SukhdevvsBhagatram; AIR 1975 SC 1331

(v) K.S. Ramamurthy vs Chief commissioner, Pondicherry: AIR 1963 SC

1464

3. Reverse Discrimination

Reverse discrimination, also known as positive discrimination, is a

controversial specific form of discrimination against members of a dominant or

majority group, or in favor of members of a minority or historically

disadvantaged group. Groups may be defined in terms of race, gender, ethnicity,

or other factors. This discrimination may seek to redress social inequalities

where minority groups have been denied access to the same privileges of the

majority group. In such cases it is intended to remove discrimination that

minority groups may already face. "Reverse discrimination" may also be used

to highlight the discrimination inherent in affirmative action programs.

The law in some countries, such as the UK, draws a distinction between

Equality of Provision and Equality of Outcome, recognizing that identical

treatment may sometimes act to preserve inequality rather than eliminate it.

Opponents of this distinction may label it as an example of positive

discrimination.

Indian Law now provides a quota system whereby a percentage of posts are

reserved in employment in Government and in the public sector units, and in all

public and private educational institutions, except in the religious/ linguistic

minority educational institutions, in order to mitigate backwardness of the

socially and educationally backward communities and the Scheduled Castes and

Tribes who do not have adequate representation in these services and

institutions. The reservation policy is also extended to the Scheduled Castes and

Scheduled Tribes for representation in the Parliament of India. The central

government of India reserves 27% of higher education, and individual states

may legislate further reservations. Reservation cannot be exceeded 50%, as per

the rulings given by the supreme court, but certain Indian states like Rajasthan

have proposed a 68 % reservation which includes a 14% reservation for forward

castes.

Reservations are intended to increase the social diversity in campuses and

workplaces by lowering the entry criteria for certain identifiable groups that are

grossly under-represented in proportion to their numbers in the general

population. Caste is the most used criteria to identify under-represented groups.

However there are other identifiable criteria for under-representation—gender

(women are under represented), state of domicile (North Eastern States, as

Bihar and Uttar Pradesh are under-represented), rural people, etc. as revealed by

the Government of India sponsored National Family Health and National

Sample surveys.The underlying theory is that the under-representation of the

identifiable groups is a legacy of the Indian caste system. After India gained

independence, the Constitution of India listed some erstwhile groups as

Scheduled Castes (SC) and Scheduled Tribes (ST). The framers of the

Constitution believed that, due to the caste system, SCs and the STs were

historically oppressed and denied respect and equal opportunity in Indian

society and were thus under-represented in nation-building activities. The

Constitution laid down 15% and 7.5% of vacancies to government aided

educational institutes and for jobs in the government/public sector, as reserved

quota for the SC and ST candidates respectively for a period of five years, after

which the situation was to be reviewed. This period was routinely extended by

the succeeding governments.

Later, reservations were introduced for other sections as well. The Supreme

Court ruling that reservations cannot exceed 50% (which it judged would

violate equal access guaranteed by the Constitution) has put a cap on

reservations. However, there are state laws that exceed this 50% limit and these

are under litigation in the Supreme Court. For example, the caste-based

reservation fraction stands at 69% and is applicable to about 87% of the

population in the state of Tamil Nadu.

Court has put 50% cap on reservations in M.R. Balaji v Mysore: AIR 1963 SC

649. Almost all states except Tamil Nadu (69%, Under 9th schedule) and

Rajasthan (68% quota including 14% for forward castes, post gujjar violence

2008) has not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra

Pradesh tried to exceed limit in 2005 which was again stalled by high court.

SC in Indira Sawhney&Ors v. Union of India.AIR 1993 SC 477, upheld

Implementation of separate reservation for other backward classes in central

government jobs.

In Unni Krishnan, J.P. &Ors. Vs. State of Andhra Pradesh &Ors.: 1993 (1)

SCC 645, it was held that right to establish educational institutions can neither

be a trade or business nor can it be a profession within the meaning of Article

19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka

(2002) 8 SCC 481, P.A.Inamdar v. State of Maharashtra 2005 AIR(SC)

3226,Supreme court ruled that reservations cannot be enforced on Private

Unaided educational institutions.

4. Right to Equality vis a vis Reservation Policy in India

Introduction:-In the American Declaration of Independence, it is said that “All

men are created equal, that they are endowed by their creator with certain

unalienable rights.”  This notion of inalienable rights and their equal

distribution has emerged in the early 16th century in the works of the social

contractors- Hobbes Locke and Rousseau. John Locke said that the right to life,

liberty and property are natural rights which are enjoyed by everyone alike and

are not separable from the person. This gives us an idea that the right to equality

is more basic than natural law itself. Thus in its creation, the state is obliged to

provide for this right, not just legally but functionally.The preamble of India

constitution contains the phrase: “Equality- social political and economic”.

These are different types of equalities and the state has to ensure that its citizens

are provided with each and every one of these. Social equality is the most

common in pluralistic societies but no provision of law can be made in this

regard. So, it is done by means of the other two categories- political and

economic. Political inequality materializes from the said social inequality but as

politics is a government functionary, legislations are made to guarantee this

right. On the other hand economic inequality is a very practical phenomenon

and thus active steps can be taken to empower all people economically. This, in

retrospect, hampers social inequality because economic status is closely

connected with social status. Thus, the state has a burden to justify, through its

legislations and its implementation that equality is sought to be achieved and

only in doing so will it realize true equality.

Indian Law For Equality:-The constitution of India says, “The state shall not

deny to any person, equality before the law or the equal protection of the laws

within the territory of India.” this is the article 14 of our constitution which is

construed as one of the fundamental rights of the people living under it. The

provision is very clear. The phrase “equality before law” is an adaptation of a

postulate of the rule of law followed by the equity courts in England. It is the

quintessential principle to be set down before exercising any authority on a

group of people. Even when the British ruled over India, this was a prominent

legal provision. The glaring inequality that was followed under the British rule

is widely known. So equality as a concept is not debated upon but it is also very

complex and although every single country in the world which has a

constitution provides for this right, the implementation of this right varies.

Some stated follow formal equality as they have a more homogenous mixture of

population like the communist countries. Other states follow substantive

equality where there are already huge inequalities prevalent. The important

thing to note is that equality is a value that every government believes in but the

interpretations are varied and none of them have been proved wrong.

Reservation Policy In India:-In the case of India, the reservation policy has been

adopted for alleviating inequalities in the political and economic scenarios. This

is a method of achieving substantive equality. India has a pluralistic society and

the main forms of discrimination are caste and religion. India being a male

dominated society, sex is also an important basis for inequity. The constitution

swears to not discriminate on any of these grounds and hence we have a

reservation policy for the protection of the interests of all discriminated groups.

The problem arises in targeting this group and meeting the ends for which

reservation is created. In law, there are two principles that have to be complied

with before legislating it. First, there should be a rationale for creating the said

law and second, there should be nexus between the law and the goal sought to

be achieved. The rationale has been justified time and again by our legislators

and people have come to terms with the fact that there is no other way to

subdue discrimination than reservations. But is there a direct link between the

provisions of this policy and the ultimate goal of equality? The answer to this

question keeps changing from time to time and that is what we are trying to

analyze in this paper.

The minorities in India started getting recognized by law through the provision

of communal electorates. This was seen as one of the reasons for the partition of

India and Pakistan, but from the viewpoint of equality, this was one of the first

efforts to bring about political equality and avoid discrimination against

minority communities. The reservation policy in the basis of caste started when

the Simon Commission came to India with the rule of separate electorates and

reservations for depressed classes. But a concrete legislation was passed only

later on after independence when Dr. B.R. Ambedkar fought for the rights of

the SC’s, ST’S and OBC’s. During the constitutional assembly debates, he

supported the cause of backward castes time and again and believed that

reservation policy is the only way to eradicate these disparities. However, the

reservation policy was always a provisional one and not permanent. For years

now, the time limit has been increasing as the government did not feel that the

required amount of equality has been achieved in the social, economic or

political life of people.

The Rationale Of The Present Reservation System:-The question we need to ask

is if the present reservation system is a true reflection of the altruistic

persuasions of the legislators or that of their political interests and/or political

pressures. The truth is that inequality is prevalent everywhere in different

forms. The constitution only provides for or recognizes a part of them. For

example, disability is also grounds for discrimination. However, the limited

reservations made for them are never objected or extended. In public sector, 3%

is the reservation for disabled persons where as it is 27% for OBC’s when in

fact; the percentage of disabled people in India is more than the percentage of

OBC’s. Why is this so? Law is subject to the interpretation of the courts and the

dynamic nature of law finds its sanction in the opinion of the judiciary. But,

courts regularly deal with cases regarding reservations for SC/ST’s or OBC’s or

women, and not for the disabled. Does the meaning of equality change in every

context? To provide “equal opportunities” to the oppressed classes means, to

help them acquire their maximum potential- not to make things easier for them.

This is a lesson one should learn from the history of independent India.

The other issue under the system of reservations is that of the creamy layer. The

distance that we have travelled after enacting reservations has eliminated

certain disparities. Caste no longer can be the sole criterion for detecting

socially backward classes because some of them have achieved economic

status, thereby finding a social standing as well. Thus, in the Mandal

commission case, the court has observed that this particular strata of the society

which they termed as the “creamy layer” should be eliminated from such

reservation policies as it is hampering the goal of the provision. However, what

goes beyond my comprehension is that if a creamy layer exists despite being a

socially backward class, maybe the objective is achieved. The law has different

reasoning to support this policy from time to time but how would we identify

the situation where the “goal” is truly reached. Waiting for absolute equality is

not practical as it is only a utopist situation. Meanwhile resistance is offered by

the classes which are not socially backward, also for the reason of

discrimination. In such a situation what kind of help is the government

providing with the reservation scheme? This is the dilemma that is struck the

entire policy down.

Conclusion:-Majoritarianism is a common vice that persists in a democratic

society. As the government is chosen by the majority and every decision that is

taken depends upon the majority vote, the law tends to favour this majority. But

there are different ways of identifying this majority- educated people,

economically and socially powerful people, people of the forward caste,

Hindus, males, etc. some of these classes might overlap but the essence remains

the same. These are the people who make the law and whom the law favors.

However, in India, the constitution makers wanted to avoid this situation of

hierarchy and majority rule. A true democracy is established when all people

have the same ability to make the decisions regarding the government. For this

reason the reservation policy is adopted to bring this equality in thought and

goals. Reservations by themselves are not unfair, but they become so when the

ground for distinction loses its credibility. In case of India, that is what is

happening, because SC’s, ST’s and OBC’s are not purely classified as socially

backward and a line should be drawn somewhere. The violation of a principle

of equality reduces public confidence in the government. The loss of this

confidence prophecies anarchy and in a pluralistic democracy like ours, its very

important to maintain this fine balance between power and principle. Thus,

reservation maybe a means to achieve equality but if not administered properly,

it can also achieve inequality.

5. Reasonableness of Restrictions

Art. 19 of the constitution of India guarantees to the citizens of India the

following six fundamental freedoms:

(a) Freedom of Speech & Expression

(b) Freedom of Assembly

(c) Freedom to form Associations

(d) Freedom to Movement

(e) Freedom to reside & to Settle

(f) Freedom to Profession, Occupation, Trade & Business

The above freedoms are available only to citizens of India, and cannot be

claimed by a foreigner.

Freedom are not absolute – subject to reasonable restrictions :- These six

freedoms are however, not absolute. Absolute individual rights cannot be

guaranteed by any modern state. An organised society is the precondition of

civil liberties. There cannot be any right which is injurious to the community as

a whole. If people were given complete and absolute liberty without any social

control the result would be ruin. Liberty has got to be limited in order to be

effectively possessed. For liberty of one must not offend the liberty of others.

Justice Patanjalishastri in A.K. Gopalanvs State of madras, AIR 1951 SC

21observed, “man as a rational being desires to do many things, but in a civil

society his desires have to be controlled, regulated and reconciled with the

exercise of similar desires by other individuals.” The guarantee of each of the

above right is, therefore, restricted by the Constitution itself by conferring upon

the state a power to impose by law reasonable restrictions as may be necessary

in the larger interest of community. The restriction on these freedoms are

provided in clauses 2 to 6 of Art. 19 of the Constitution.

The restriction which may be imposed under any of the clauses must be

reasonable restriction. The restriction cannot be arbitrary. Hence a restriction to

be constitutionally valid it must satisfy the following two tests:-

(1) The restriction must be for the purposes mentioned in class 2 to 6 of Art. 19;

(2) The restriction must be reasonable restriction.

Test of ‘Reasonable Restriction’:- the restriction on the rights under Art. 19(1)

can only be imposed by a law’ and not executive or departmental

instructions.The phrase “reasonable restrictions” in Art. 19(6) means that the

restrictions imposed on a person in the enjoyment of his right should not be

arbitrary or of an excessive nature, beyond what is required in the interest of the

public. The SC has laid down the following guidelines for determining the

reasonableness of restrictions.

(1)  It is the courts and not the legislature which has to judge finally whether a

restriction is reasonable or not.

(2) The term ‘reasonable restriction’ in Art. 19(6) connotes that the limitation

imposed on a person in the enjoyment of his right should not be arbitrary or

of an excessive nature, beyond what is actually required in the interest of the

public. The word ‘reasonable’ implies intelligent care and deliberation, that

is, the choice, of a course which reasonably dictate.

(3)  There is no exact standard or general pattern of reasonableness that can be

laid down for all cases. Each case is to be judged on its own merits. The

standard varies with the nature of the right infringed, the underlying purpose

of the restrictions imposed, the extent and the urgency of the evil sought to

be remedied, the disproportion, of the imposition, the prevailing condition at

the time. These factors have to be taken into consideration for any judicial

verdict.

(4) The restriction must be reasonable from the substantive as well as procedural

standpoint. The court should consider not only the duration and extent of the

restriction but also the circumstances under which, and the manner in which

that imposition has been authorized.

(5)  A restriction which is imposed for securing the objects and laid down in the

DPSP may be regarded as reasonable restriction.

(6)  The court must determine the reasonableness of restriction by objective

standard and not by subjective one. In other words, the question is not if the

court feels the restriction to be reasonable but where a normal reasonable

man would regard the restriction to be reasonable.

(7)  A restriction to be reasonable must have a rational relation with the object

which the legislature seeks to achieve and must not be in excess of that

object.

(8) It is the reasonableness of restriction which is to be determined by the court

and not the reasonableness of the law. The court has only to see whether the

restrictions imposed on citizens rights are reasonable.

(9) Restrictions may also amount to prohibition under certain circumstances.

Thus, a law depriving a citizen of his fundamental right may be regarded as

reasonable restrictions, if it prohibits him to carry out dangerous trades such

as that of trade in liquor or cultivation of narcotic plants or trafficking in

women.

Rights available to citizen only:- The rights guaranteed by Art. 19 are available

only to citizens and not to an alien or a foreigner. A foreigner is not a citizen of

India and therefore he cannot claim a right u/Art. 19.

Union of India vs Naveen Jindal: (2004)2 SCC 476, held that right to unfurl

the national flag freely with respect and dignity is a fundamental right of a

citizen within the meaning of Art. 19(1)(a) of the constitution, being an

expression and manifestation of his allegiance and feelings and sentiments of

pride for the nation. But the same is not an absolute right but a qualified one

subject to reasonable restrictions under clause (2) of Art. 19. The Emblems and

Names (prevention of Improper use) Act, 1950 and the prevention of insults to

National Honour Acr, 1971 regulate the use of the national flag.

6. Right to life and personal liberty

Introduction:-The Constitution of India provides Fundamental Rights under

Chapter III.  These rights are guaranteed by the constitution. One of these rights

is provided under article 21 which reads as follows:-

Article 21. Protection Of Life And Personal Liberty: No person shall be

deprived of his life or personal liberty except according to procedure

established by law.

Though the phraseology of Article 21 starts with negative word but the word

No has been used in relation to the word deprived. The object of the

fundamental right under Article 21 is to prevent encroachment upon personal

liberty and deprivation of life except according to procedure established by law.

It clearly means that this fundamental right has been provided against state

only. If an act of private individual amounts to encroachment upon the personal

liberty ordeprivation of life of other person. Such violation would not fall under

the parameters set for the Article 21. in such a case the remedy for aggrieved

person would be either under Article 226 of the constitution or under general

law. But, where an act of private individual supported by the state infringes the

personal liberty or life of another person, the act will certainly come under the

ambit of Article 21. Article 21 of the Constitution deals with prevention of

encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government

Departments, Legislature, Administration, Local Authorities exercising

statutory powers and so on so forth, but it does not include non-statutory or

private bodies having no statutory powers. For example: company, autonomous

body and others. Therefore, the fundamental right guaranteed under Article 21

relates only to the acts of State or acts under the authority of the State which are

not according to procedureestablished by law. The main object of Article 21 is

that before a person is deprived of his life or personal liberty by the State, the

procedure established by law must be strictly followed. Right to Life means the

right to lead meaningful, complete and dignified life. It does not have restricted

meaning. It is something more than surviving or animal existence. The meaning

of the word life cannot be narrowed down and it will be available not only to

every citizen of the country . As far as Personal Liberty is concerned, it means

freedom from physical restraint of the person by personal incarceration or

otherwise and it includes all the varieties of rights other than those provided

under Article 19 of the Constitution. Procedure established by Law means the

law enacted by the State. Deprived has also wide range of meaning under the

Constitution. These ingredients are the soul of this provision. The fundamental

right under Article 21 is one of the most important rights provided under the

Constitution which has been described as heart of fundamental rights by the

Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex

Court in Gopalans case that the contents and subject matter of Article 21 and

19 (1) (d) are not identical and they proceed on total principles. In this case the

word deprivation was construed in a narrow sense and it was held that the

deprivation does not restrict upon the right to move freely which came under

Article 19 (1) (d). at that time Gopalans case was the leading case in respect of

Article 21 along with some other Articles of the Constitution, but post Gopalan

case the scenario in respect of scope of Article 21 has been expanded or

modified gradually through different decisions of the Apex Court and it was

held that interference with the freedom of a person at home or restriction

imposed on a person while in jail would require authority of law. Whether the

reasonableness of a penal law can be examined with reference to Article 19,

was the point in issue after Gopalan’s case in the case of Maneka Gandhi v.

Union of India , the Apex Court opened up a new dimension and laid down

that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21

imposed a restriction upon the state where it prescribed a procedure for

depriving a person of his life or personal liberty. This view has been further

relied upon in a case of Francis Coralie Mullin v. The Administrator, Union

Territory of Delhi and others as follows: Article 21 requires that no one shall

be deprived of his life or personal liberty except by procedure established by

law and this procedure must be reasonable, fair and just and not arbitrary,

whimsical or fanciful. The law of preventive detention has therefore now to

pass the test not only for Article 22, but also of Article 21 and if the

constitutional validity of any such law is challenged, the court would have to

decide whether the procedure laid down by such law for depriving a person of

his personal liberty is reasonable, fair and just. In another case of Olga Tellis

and others v. Bombay Municipal Corporation and others , it was further

observed : Just as a mala fide act has no existence in the eye of law, even so,

unreasonablenessvitiates law and procedure alike. It is therefore essential that

the procedure prescribed by law for depriving a person of his fundamental right

must conform the norms of justice and fair play. Procedure, which is just or

unfair in the circumstances of a case, attracts the vice of unreasonableness,

thereby vitiating the law which prescribes that procedure and consequently, the

action taken under it.As stated earlier, the protection of Article 21 is wide

enough and it was further widened in the case of BandhuaMuktiMorcha v.

Union of India and others in respect of bonded labour and weaker section of

the society. It lays down as follows:Article 21 assures the right to live with

human dignity, free from exploitation. The state is under a constitutional

obligation to see that there is no violation of the fundamental right of any

person, particularly when he belongs to the weaker section of the community

and is unable to wage a legal battle against a strong and powerful opponent who

is exploiting him. Both the Central Government and the State Government are

therefore bound to ensure observance of the various social welfare and labour

laws enacted by Parliament for the purpose of securing to the workmen a life of

basic human dignity in compliance with the directive principles of the state

policy.

The meaning of the word life includes the right to live in fair and reasonable

conditions, right to rehabilitation after release, right to live hood by legal means

and decent environment. The expanded scope of Article 21 has been explained

by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex

Court itself provided the list of some of the rights covered under Article 21 on

the basis of earlier pronouncements and some of them are listed below:

(1) The right to go abroad.

(2) The right to privacy.

(3) The right against solitary confinement.

(4) The right against hand cuffing.

(5) The right against delayed execution.

(6) The right to shelter.

(7) The right against custodial death.

(8) The right against public hanging.

(9) Doctors assistance.

It was observed in UnniKrishnans case that Article 21 is the heart of

Fundamental Rights and it has extended the Scope of Article 21 by observing

that the life includes the education as well as, as the right to education flows

from the right to life.

As a result of expansion of the scope of Article 21, the Public Interest

Litigations in respect of children in jail being entitled to special protection,

health hazards due to pollution and harmful drugs, housing for beggars,

immediate medical aid to injured persons, starvation deaths, the right to know,

the right to open trial, inhuman conditions in aftercare home have found place

under it. Through various judgments the Apex Court also included many of the

non-justifiable Directive Principles embodied under part IV of the Constitution

and some of the examples are as under:(a) Right to pollution free water and air.

(b) Protection of under-trial.

(c) Right of every child to a full development.

(d) Protection of cultural heritage.

Maintenance and improvement of public health, improvement of means of

communication, providing human conditions in prisons, maintaining hygienic

condition in slaughter houses have also been included in the expanded scope of

Article 21. this scope further has been extended even to innocent hostages

detained by militants in shrine who are beyond the control of the state.

The Apex Court in the case of S.S. Ahuwalia v. Union of India and others it

was held that in the expanded meaning attributed to Article 21 of the

Constitution, it is the duty of the State to create a climate where members of the

society belonging to different faiths, caste and creed live together and,

therefore, the State has a duty to protect their life, liberty, dignity and worth of

an individual which should not be jeopardized or endangered. If in any

circumstance the state is not able to do so, then it cannot escape the liability to

pay compensation to the family of the person killed during riots as his or her

life has been extinguished in clear violation of Article 21 of the Constitution.

While dealing with the provision of Article 21 in respect of personal liberty,

Hon’ble Supreme Court put some restrictions in a case of Javed and others v.

State of Hariyana, AIR 2003 SC 3057 as follows: at the very outset we are

constrained to observe that the law laid down by this court in the decisions

relied on either being misread or read divorced of the context. The test of

reasonableness is not a wholly subjective test and its contours are fairly

indicated by the Constitution. The requirement of reasonableness runs like a

golden thread through the entire fabric of fundamental rights. The lofty ideals of

social and economic justice, the advancement of the nation as a whole and the

philosophy of distributive justice- economic, social and political- cannot be

given a go-by in the name of undue stress on fundamental rights and individual

liberty. Reasonableness and rationality, legally as well as philosophically,

provide colour to the meaning of fundamental rights and these principles are

deducible from those very decisions which have been relied on by the learned

counsel for the petitioners.

The Apex Court led a great importance on reasonableness and rationality of the

provision and it is pointed out that in the name of undue stress on Fundamental

Rights and Individual Liberty, the ideals of social and economic justice cannot

be given a go-by. Thus it is clear that the provision Article 21 was constructed

narrowly at the initial stage but the law in respect of life and personal liberty of

a person was developed gradually and a liberal interpretation was given to these

words. New dimensions have been added to the scope of Article21 from time to

time. It imposed a limitation upon a procedure which prescribed for depriving a

person of life and personal liberty by saying that the procedure which

prescribed for depriving a person of life and personal liberty by saying that the

procedure must be reasonable, fair and such law should not be arbitrary,

whimsical and fanciful. The interpretation which has been given to the words

life and personal liberty in various decisions of the Apex Court, it can be said

that the protection of life and personal liberty has got multi-dimensional

meaning and any arbitrary, whimsical and fanciful act of the State which

deprived the life or personal liberty of a person would be against the provision

of Article 21 of the Constitution.

7. Right to health u/Art. 21

the Supreme Court has brought the right to health under the preview of Article

21. The scope of this provision is very wide. It prescribes for the right of life

and personal liberty. The concept of personal liberty comprehended many

rights, related to indirectly to life or liberty of a person. And now a person can

claim his right of health. Thus, the right to health, along with numerous other

civil, political and economic rights, is afforded protection under the Indian

Constitution.

The debate surrounding the implementation of the human right to health is fresh

and full of possibility for the developing world. In fact, Indian has been able to

create a legal mechanism whereby right to health can be protect and enforced.

The early of 1970s, witnessed a watershed in human rights litigation with the

keshwanandbhartiVs State of kerala, ushering in a unprecedented period of

progressive jurisprudence following the recognition fundamental rights. At the

same time standing rules were relaxed in order to promote PIL and access to

justice. So there were two developments in 1980s, which led to a marked

increase in health related litigation. First was the establishment of consumer

courts that made it cheaper and speedier to sue doctors for medical negligence.

Second, the growth of PIL and one of this offshoots being recognition of health

care as a fundamental right. Through PIL the Supreme Court has allowed

individual citizen to approach the court directly for the protection of their

Constitutional human rights.

The Constitution guarantees the some fundamental rights having a bearing on

health care. Article 21deal with “No person shall be deprived of his life or

personal liberty except according to procedure established by law.” Right to

live means something more, than more animal existence and includes the right

to live consistently with human dignity and decency.

In 1995, the Supreme Court held that right to health and medical care is a

fundamental right covered by Article 21 since health is essential for making the

life of workmen meaningful and purposeful and compatible with personal

dignity. The state has an obligation under Article 21 to safeguard the right to

life of every person, preservation of human life being of paramount importance.

The Supreme Court has in the case of ParmanandKatravs Union of India, held

that whether the patient be an innocent person or be a criminal liable to

punishment under the law, it is the obligation of those who are in charge of the

health of the community to preserve life so that innocent may be protected and

the guilty may be punished.

Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human

beings. It is well known that traffic in women leads to prostitution, which in

turn is to major factor in spread of AIDS. Article 24 is relating to child labour it

deal with “No child below the age of 14 years shall be employed to work in any

factory or mine or engaged in any other hazardous employment.” Thus this

article is of direct relevance to child health.

In addition to constitutional remedies sensitizing of the relevant ordering law

towards later health for all adds to the content of right to health. Legal

prohibition of commercialized transplantation of human organ and effective

application of consumer protection act to deal with deficient medical services

have animated right to health.

Judicial Response: – with the recognition that both the Indian Constitution and

the fundamental right of life emphasize human dignity, began to address the

importance of health to Indian citizen. In the DPSP, Art.47 declares that the

State shall regard the level of nutrition and the standard of living of its people

and the improvement of public health as among its primary duties. Since DPSP

are not enforceable by the court, implementation of the guarantee has remained

illusory.[19] However, in a series of cases dealing with the substantive content

of the right to life, the court has found that the right live with human dignity

including right to good health. In Consumer Education and Research Center v.

UOI, the Court explicitly held that the right to health was an integral factor of a

meaningful right to life. The court held that the right to health and medical care

is a fundamental right under Article 21. The Supreme Court, while examining

the issue of the constitutional right to health care under arts 21, 41 and 47 of the

Constitution of India in State of Punjab v Ram LubhayaBagga, observed that

the right of one person correlates to a duty upon another, individual, employer,

government or authority. Hence, the right of a citizen to live under art 21 casts

and obligation on the state. This obligation is further reinforced under art 47; it

is for the state to secure health to its citizens as its primary duty. No doubt the

government is rendering this obligation by opening government hospitals and

health centers, but to be meaningful, they must be within the reach of its people,

and of sufficient liquid quality. Since it is one of the most sacrosanct and

valuable rights of a citizen, and an equally sacrosanct and sacred obligation of

the state, every citizen of this welfare state looks towards the state to perform

this obligation with top priority, including by way of allocation of sufficient

funds. This in turn will not only secure the rights of its citizens to their

satisfaction, but will benefit the state in achieving its social, political and

economic goals.

Right to Health Care as a Fundamental Right: – The Supreme Court, in

PaschimBangaKhetmazdoorSamity&ors v. State of West Bengal &ors, while

widening the scope of art 21 and the government’s responsibility to provide

medical aid to every person in the country, held that in a welfare state, the

primary duty of the government is to secure the welfare of the people.

Providing adequate medical facilities for the people is an obligation undertaken

by the government in a welfare state. The government discharges this obligation

by providing medical care to the persons seeking to avail of those facilities.

Article 21 imposes an obligation on the state to safeguard the right to life of

every person. Preservation of human life is thus of paramount importance. The

government hospitals run by the state are duty bound to extend medical

assistance for preserving human life. Failure on the part of a government

hospital to provide timely medical treatment to a person in need of such

treatment, results in violation of his right to life guaranteed under Article21.

The Court made certain additional direction in respect of serious medical cases:

a.      Adequate facilities be provided at the public health centers where the

patient can be given basic treatment and his condition stabilized.

b.      Hospitals at the district and sub divisional level should be upgraded so

that serious cases be treated there.

c.      Facilities for given specialist treatment should be increased and having

regard to the growing needs, it must be made available at the district and sub

divisional level hospitals.

d.      In order to ensure availability of bed in any emergency at State level

hospitals, there should be a centralized communication system so that the

patient can be sent immediately to the hospital where bed is available in respect

of the treatment, which is required.

e.      Proper arrangement of ambulance should be made for transport of a

patient from the public health center to the State hospital.

f.       Ambulance should be adequately provided with necessary equipments

and medical personnel.

Workers right to health care facilities: – The Supreme Court has recognized the

rights of the workers and their right to basic health facilities under the

Constitution, as well as under the international conventions to which India is a

party. In its path breaking judgment in BandhuaMuktiMorcha v Union of

India, the court delineated the scope of art 21 of the Constitution, and held that

it is the fundamental right of every one in this country, assured under the

interpretation given to art 21 by this court in Francis Mullin’s Case to live with

human dignity, free from exploitation. This right to live with human dignity

enshrined in art 21 derives its life breath from the directive principles of state

policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must

include protection of the health and strength of workers, men and women; and

children of tender age against abuse; opportunities and facilities for children to

develop in a healthy manner and in conditions of freedom and dignity;

educational facilities; just and humane conditions of work and maternity relief.

These are the minimum requirements, which must exist in order to enable a

person to live with human dignity. No state, neither the central government nor

any state government, has the right to take any action which will deprive a

person of the enjoyment of these basic essentials.InCESE Ltd v Subhash

Chandra Bose, the court held that, the health and strength of a worker is an

integral facet of the right to life. The aim of fundamental rights is to create an

egalitarian society to free all citizens from coercion or restrictions by society

and to make liberty available for all. The court, while reiterating its stand for

providing health facilities in Vincent v Union of India, held that a healthy body

is the very foundation for all human activities. In a welfare state, therefore, it is

the obligation of the state to ensure the creation and the sustaining of conditions

congenial to good health.

Right to Health is a Fundamental Right: In CESC Ltd. vs. Subash Chandra

Bose, the Supreme Court relied on international instruments and concluded that

right to health is a fundamental right. It went further and observed that health is

not merely absence of sickness: “The term health implies more than an absence

of sickness. Medical care and health facilities not only protect against sickness

but also ensure stable manpower for economic development. Facilities of health

and medical care generate devotion and dedication to give the workers’ best,

physically as well as mentally, in productivity. It enables the worker to enjoy

the fruit of his labour, to keep him physically fit and mentally alert for leading a

successful economic, social and cultural life. The medical facilities are,

therefore, part of social security and like gilt edged security, it would yield

immediate return in the increased production or at any rate reduce absenteeism

on grounds of sickness, etc.

Environment Pollution is linked to Health and is violation of right to life with

dignity: In T. Ramakrishna Rao vs. Hyderabad Development Authority, the

Andhra Pradesh High Court observed: Protection of the environment is not only

the duty of the citizens but also the obligation of the State and it’s all other

organs including the Courts. The enjoyment of life and its attainment and

fulfilment guaranteed by Article 21 of the Constitution embraces the protection

and preservation of nature’s gift without which life cannot be enjoyed fruitfully.

The slow poisoning of the atmosphere caused by the environmental pollution

and spoliation should be regarded as amounting to violation of Article 21 of the

Constitution of India.

 It is therefore, as held by this Court speaking through P.A, Choudary, J., in T.

DamodarRao and others vs. Special Officer, Municipal Corporation of

Hyderabad, the legitimate duty of the Courts as the enforcing organs of the

constitutional objectives to forbid all actions of the State and the citizens from

upsetting the ecological and environmental balance. In Virender Gaur vs. State

of Haryana, the Supreme Court held that environmental, ecological, air and

water pollution, etc., should be regarded as amounting to violation of right to

health guaranteed by Article 21 of the Constitution. It is right to state that

hygienic environment is an integral facet of the right to healthy life and it would

not be possible to live with human dignity without a humane and healthy

environment. In Consumer Education and Research Centre vs. Union of

India, Kirloskar Brothers Ltd. vs. Employees’ State Insurance Corporation,

the Supreme Court held that right to health and medical care is a fundamental

fight under Article 21 read with Article 39(e), 41 and 43. In Subhash Kumar

vs. State of Bihar, the Supreme Court held that right to pollution-free water and

air is an enforceable fundamental right guaranteed under Article 21. Similarly

in Shantistar Builders v. Narayan KhimalalTotame, the Supreme Court opined

that the right to decent environment is covered by the right guaranteed under

Article 21. Further, in M.C. Mehta vs. Union of India, Rural Litigation and

Entitlement Kendra v. State of U.P., Subhash Kumar vs. State of Bihar , the

Supreme Court imposed a positive obligation upon the State to take steps for

ensuring to the individual a better enjoyment of life and dignity and for

elimination of water and air pollution. It is also relevant to notice as per the

judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India,

Unnikrishnan, JP vs. State of A.P. The maintenance and improvement of

public health is the duty of the State to fulfill its constitutional obligations cast

on it under Article 21 of the Constitution.

8. Right to Privacy

The right to privacy presents itself as an illustration of the interpretative

capabilities of the higher judiciary, as well as a right emanating as a

consequence of the larger process of widening the ambit of specifically

enumerated fundamental rights. which shall be critically examined in the

context of the Supreme Court’s ruling in the case of KharakSingh v. State of

Punjab. The literal meaning of privacy, as defined in the New Oxford English

Dictionary3 is the ‘absence or avoidance of publicity or display; the state or

condition from being withdrawn from the society of others, or from public

interest; seclusion.’ The Black’s Law Dictionary refers to privacy as “the right

to be let alone; the right of a person to be free from unwarranted publicity; and

the right to live without unwarranted interference by the public in matters with

which the public is not necessarily concerned”. Therefore, the right to privacy,

notwithstanding its differing connotations, remains a private right of an

individual.Privacy as a concept involves what privacy entails and how it is to be

valued. Privacy as aright involves the extent to which privacy is (and should be

legally protected). “ The lawdoes not determine what privacy is, but only what

situations of privacy will be affordedlegal protection”. It is interesting to note

that the common law does not know a generalright of privacy and the Indian

Parliament has so far been reluctant to enact one.

Judicial Activism: The Right to Privacy:-The role of the Judiciary. Judicial

activism has brought the Right to Privacy within the realm of Fundamental

Rights. Article 141 of the Constitution states that “the law declared by the

Supreme Court shall be binding on all courts within the territory of India.”

Therefore, the decisions of The Supreme Court of India become the Law of the

Land.The Supreme Court of India has come to the rescue of common citizen,

time and again byconstruing “right to privacy” as a part of the Fundamental

Right to “protection of life andpersonal liberty” under Article 21 of the

Constitution, which states “no person shall be deprived of his life or personal

liberty except according to procedures established by law”. In the context of

personal liberty, the Supreme Court has observed “those who feel called upon

to deprive other persons of their personal liberty in the discharge of what they

conceive to be their duty must strictly and scrupulously observe the forms and

rules of the law”.Even the fundamental right “to freedom of speech and

expression” as enumerated inArticle 19(1)(a) of the Constitution of India comes

with reasonable restrictions imposedby the State relating to (i) defamation; (ii)

contempt of court; (iii) decency or morality;(iv) security of the State; (v)

friendly relations with foreign states; (vi) incitement to anoffence; (vii) public

order; (viii) maintenance of the sovereignty and integrity of India.Thus, the

right to privacy is limited against defamation, decency or morality.The Supreme

Court has reiterated the Right to Privacy in the following cases:

1. Kharak Singh v. State of UP.In this case the appellant was being harassed by

police under Regulation 236(b) of UP Police Regulation, which permits

domiciliary visits at night. The Supreme Court held that the Regulation 236 is

unconstitutional and violative of Article 21. It concluded that the Article 21 of

the Constitution includes “right to privacy” as a part of the right to “protection

of life and personal liberty”. The Court equated ‘personal liberty’ with

‘privacy’, and observed, that “the concept of liberty in Article 21 was

comprehensive enough to include privacy and that a person’s house, where he

lives with his family is his ‘castle’ and that nothing is more deleterious to a

man’s physical happiness and health than a calculated interference with his

privacy”.

2. Gobind v. State of M.P. is another case on domiciliary visits. The Supreme

Court laiddown that “ …………privacy-dignity claims deserve to be examined

with care and to bedenied only when an important countervailing interest is

shown to be superior. If theCourt does find that a claimed right is entitled to

protection as a fundamental privacyright, a law infringing it must satisfy the

compelling State interest test………”

3. State v. Charulata Joshi the Supreme Court held that “the constitutional

right to freedom of speech and expression conferred by Article 19(1)(a) of the

Constitution whichincludes the freedom of the press is not an absolute right.

The press must first obtain the willingness of the person sought to be

interviewed and no court can pass any order if theperson to be interviewed

expresses his unwillingness”.

4. R. Rajagopal v. State of Tamil Nadu, the Supreme Court held that the

petitioners have a right to publish what they allege to be the life-

story/autobiography of Auto Shankar insofar as it appears from the public

records, even without his consent or Authorization. But if they go beyond that

and publish his life story, they may be invading his right to privacy, then they

will be liable for the consequences in accordance with law. Similarly, the State

or its officials cannot prevent or restraint the said publication. It Stated that “A

citizen has a right to safeguard the privacy of his own, his family, marriage,

procreation, motherhood, child bearing and education among other matters.

None can publish anything concerning the above matters without his consent-

whether truthful or otherwise and whether laudatory or critical. If he does so, he

would be violating the right to privacy of the person concerned and would be

liable in an action for damages…….”

5. People’s Union for Civil Liberties (PUCL) v. Union of India, the Supreme

Court heldthat the telephone tapping by Government under S. 5(2) of Telegraph

Act, 1885 amountsinfraction of Article 21 of the Constitution of India. Right to

privacy is a part of the rightto “life” and “personal liberty” enshrined under

Article 21 of the Constitution. The saidright cannot be curtailed “except

according to procedure established by law”.

6. In Mr. ‘X’ v. Hospital ‘Z’ for the first time the Supreme Court articulated on

sensitivedata related to health. In this case, the appellant’s blood test was

conducted at the respondent’s hospital and he was found to be HIV (+). His

marriage, which was alreadysettled, was called off after this revelation. Several

persons including the members of hisfamily and those belonging to their

community came to know of his HIV (+) status and was ostracized by the

community. He approached the National Commission against the respondent

hospital claiming damages from them for disclosing information about his

health, which, by norms of ethics, according to him, ought to have been kept

confidential. The National Commission summarily dismissed his complaint.

Consequently he moved the Supreme Court by way of an appeal. The appellant

argued that the principle of ‘duty of care’ as applicable to persons in medical

profession also included the duty to maintain confidentiality and that since this

duty was violated by the respondents, they were liable to pay damages. “Right

of privacy may, apart from contract, also arise out of a particular specific

relationship, which may be commercial, matrimonial, or even political. Doctor-

patient relationship, though basically commercial, is professionally, a matter of

confidence and, therefore, doctors are morally and ethically bound to maintain

confidentiality.” It however, held that although it was the basic principle of

jurisprudence that ‘every Right has a correlative Duty and every Duty has a

correlative Right’, the rule was not absolute and was ‘subject to certain

exceptions’ in the sense that ‘a person may have a Right, but there may not be

correlative Duty, and the instant case fell within exceptions. The court observed

that even the Code of Medical Ethics carved out an exception to the rule of

confidentiality and permitted the disclosure in certain circumstances ‘under

which public interest would override the duty of confidentiality’ particularly

where there is ‘an immediate or future health risk to others’. According to the

court, the ‘right to confidentiality, if any, vested in the appellant was not

enforceable in the present situation, as the proposed marriage carried with it the

health risk from being infected with the communicable disease from which the

appellant suffered. As regards the argument of the appellant that his right to

privacy had been infringed by the respondents by disclosing that he was HIV

(+) and, therefore, they were liable in damages, the Supreme Court observed

that as one of the basic human rights, the right of privacy was not treated as

absolute and was ‘subject to such action as may be lawfully taken for the

prevention of crime or disorder or protection of health or morals or protection

of rights and freedom of others.”

7. District Registrar and Collector v. Canara Bank, it was held, that “exclusion

of illegitimate intrusions into privacy depends on the nature of the right being

asserted andthe way in which it is brought into play; it is at this point that the

context becomes crucial, to inform substantive judgment. If these factors are

relevant for defining the rightto privacy, they are quite relevant whenever there

is invasion of that right by way of searches and seizures at the instance of the

State.”If one follows the judgments given by the Hon’ble Supreme Court, three

themes emerge18:

(1) that the individual’s right to privacy exists and any unlawful invasion of

privacy would make the ‘offender’ liable for the consequences in accordance

with law;

(2) that there is constitutional recognition given to the right of privacy which

protects personal privacy against unlawful governmental invasion;

(3) that the person’s “right to be let alone” is not an absolute right and may be

lawfully restricted for the prevention of crime, disorder or protection of health

or morals or protection of rights and freedom of others;

Tracing the Right to Privacy in India:-In the celebrated case of ADM Jabalpur

v. ShivakantShukla, the Supreme Court sought to determine if the right to

personal liberty is limited by any limitations other than those expressly

contained in the Constitution and statute law. As observed by Khanna J:

“Article 21 is not the sole repository of the right to personal liberty…..no one

shall be deprived of his life and personal liberty without the authority of laws

follows not merely from common law, it flows equally from statutory law like

the penal law in force in India.” This establishes that the right to privacy need

not be expressly guaranteed, but may be implicit because of its inclusion in

common law. The Supreme Court in recent years through judicial activism has

preferred to “read into” the Constitution a fundamental right to privacy by a

creative interpretation of the right to life guaranteed under Article 21.

Privacy and Data Protection:-Privacy is closely connected to Data Protection.

An individual’s data like his name address, telephone numbers, profession,

family, choices, etc. are often available at various places like schools, colleges,

banks, directories, surveys and on various web sites. Passing on such

information to interested parties can lead to intrusion in privacy like incessant

marketing calls.It would be a misnomer to say that India does not have ‘data

protection’ legislation at all.This is factually wrong. The fact is that there exists

data protection legislation in India. The subject matter of data protection and

privacy has been dealt within the InformationTechnology Act, 2000 but not in

an exclusive manner. Data protection is not a subject in any of the three lists in

Schedule VII of the Constitution of India. But Entry 97 of List 1 states: “any

other matter not enumerated in List II and List III …….” Thus only the Indian

Parliament is competent to legislate on data protection since it can be

interpreted as any other matter not enumerated in List II and List III. Data

protection is, thus, a Central subject and only the Central Government is

competent to frame legislations on issues dealing with data protection. In fact,

the Information Technology Act, 2000, enacted by the Indian Parliament is the

first legislation, which contains provisions on data protection. Tracing the

Origins of the Right to Privacy in India.The struggle to specifically incorporate

privacy as a specific fundamental right under the Constitution is substantially

attributable, in large measure, to the rather amorphous character of this right. In

the case of M.P. Sharma v. Satish Chandra wherein the contours of the

police’s powers of search and surveillance were outlined, it was held that there

is no right to privacy under the Constitution. In reaching this conclusion, the

Supreme Court preferred to base its interpretation in a rather narrow sense,

limiting itself to simply the prescribed statutory regulations. This represented

the prevailing judicial approach of simply limiting interpretation, along

positivist lines. Therefore, the Court concluded that it lacked the justification to

import [privacy] into a totally different fundamental right, by some process of

strained construction. Thus the courts adopted a narrow and formalistic

approach by pointing to the absence of a specific constitutional provision

analogous to the Fourth Amendment of the US constitution, to protect the right

of privacy of Indians from unlawful searches. This ruling has been followed

nearly a decade later, in the case of Kharak Singh v. State of Punjab, wherein

the right to privacy was again invoked to challenge police surveillance of an

accused person. The contention raised is that the right to privacy may be

identified in the “personal liberty” as contained in Article 21. Citing with

approval the observations of Field, J in Munn v Illinois, it referred to the fifth

and fourteenth amendment of the American Constitution and other American

and English judgments of Wolf v. Colorado24 and Semayne’s Case. In

widening the scope of liberty under Article 21, the Court held that “personal

liberty” is contained in Article 21 as a “compendious term to include within

itself all varieties of rights which go to make up the personal liberty of man

other than those dealt with in several clauses of Article 19(1).” However,

notwithstanding this, it concluded that this right to privacy is not in existence

under the Constitution, with Ayyangar, J laying down that: “The right of

privacy is not guaranteed under our Constitution and therefore the attempt to

ascertain the movements of an individual which is merely a manner in which

privacy is invaded is not an infringement of fundamental right guaranteed by

Part III”. As in the M.P. Sharma case, the Supreme Court appears to be

influenced by the absence of any provision similar to that of a prohibition on

unreasonable search and seizure as is available under the Fourth Amendment of

the US Constitution. Thus the majority erred in regarding “prohibition on

unreasonable search and seizure” as the only facet of privacy. It remains

surprising as to how the Court arrived at the conclusion that secret surveillance

is not unconstitutional and violative of personal liberty. It is also not clear how

the Court came to the conclusion that secret surveillance was not

unconstitutional and did not violate personal liberty, but at the same time

quoted in a positive light Semayne’s case and opined that “the house to

everyone is to him as his castle and fortress”. Taking a more holistic view of the

scheme of protection afforded by Part III, the minority found that all acts of

surveillance under the impugned Regulations offended Articles 21 and 19(1)

(d), as movement under the shroud of police surveillance cannot be described as

free movement within the meaning of the constitution. Thus the minority

judgment found the clauses authorizing “surveillance” as unconstitutional as

they believed that even thought there did not exist an express right to “privacy”

in the Constitution, such a right was built into the very fabric of Article 21 and

secondly, they were of the opinion that “the right to move freely” implied the

right to move free from psychological impediments, which obviously cannot be

the case if one knows he is under surveillance. However, even the minority

ruling rejects recognition of the right to privacy, although it concluded that the

acts of surveillance are unconstitutional. At this point, it is pertinent to

remember that the rationale on which the majority ruling is based in the Kharak

Singh case is that the rights contained in Article 19 are not contained in Article

21, which has been rejected following the Supreme Court’s ruling in the

celebrated Maneka Gandhi case, wherein a Bench of the Supreme Court held,

while referring to its earlier ruling in the Kharak Singh case:

“In our view this is not the correct approach. Both are independent fundamental

rights, though they are overlapping. The fundamental right to life and personal

liberty has many attributes and some of them are found in Article 19.”31

The majority opinion in the Kharak Singh case relied upon the theory of

“carving out” in Article 21 the residue of the elements of personal liberty

excluded in the ambit of Article 19(1). In rejecting this, subsequent rulings of

the Supreme Court proceeded to detail upon the different manifestation of

personal liberties as contained in both constitutional provisions, because of

which Article 21 could not be treated as a residual provision. This judicial

approach resonates the Supreme Court’s categorical rejection of the right to

strike in the All India Bank Employees Association case, wherein it held that

even upon a liberal interpretation of Article 19(1), it cannot be concluded that

trade unions are guaranteed the right to strike. In a similar manner, there is no

implied right to privacy, thereby reinforcing the plea that the right to privacy

ought to be clearly articulated. The Supreme Court, a decade later, examined

the existence and scope of the fundamental right to privacy. In Govind v State

of MP the Supreme Court, again adjudicating upon the question of the

constitutionality of police surveillance, side-stepped the rationale underlying the

earlier rulings in M.P. Sharma and Kharak Singh. Tracing the origin of the

right in the presumed intention of the framers of the Constitution, the court,

speaking through Matthew J. said:

“There can be no doubt that the makers of our Constitution wanted to ensure

conditions favourable to the pursuit of happiness. They certainly realized, as

Brandeis, J. said in his dissent in Olmstead v. US, the significance of man’s

Spiritual nature, of his feelings and his intellect (...). They sought to protect

[Individual] in their beliefs, thoughts, their emotions and their sensations.

Therefore they must be deemed to have conferred upon the individual as against

the government a sphere where he should be let alone”. The Supreme Court,

while accepting the unifying principle underlying the concept of privacy, noted

that the fundamental nature of the right is implicit in the concept of ordered

liberty. Substantiated by recent rulings of the US Supreme Court, the judicial

approach remained that there exists a penumbra or zone of privacy in terms of

the different guarantees afforded by Part III of the Constitution of India, thereby

anchoring the right of privacy in India’s constitutional jurisprudence. However,

remaining cautious, the Supreme Court also observed that in the absence of any

legislative enactment, this right will pass through a “case-by-case

development”.

The Supreme Court’s ruling in the Govind case was rendered by a Bench

consisting of three judges, although rather contradictory to that as held by a

Bench of six judges in the Kharak Singh case, hereinbefore referred to.

Interestingly, the ruling in the Govind case fails to refer to earlier decisions on

privacy, because of which it is possible to contend if the law as laid down in

this case is valid, as it appears to be contrary to the ruling in the Kharak Singh

case.

On the basis of a dispassionate perusal of the aforementioned judicial rulings, it

is evident that there is an implied, unenumerated, but judicially- evolved and

recognized right to privacy under the Indian Constitution. Although the rulings

of the Supreme Court in the cases of M.P. Sharma and Kharak Singh, already

referred to, denied the existence of any right to privacy, smaller benches in the

cases of Govind, Rajagopaland PUCL unmistakably indicate the existence of

such a right. The shift in judicial interpretation is most notably observed

following the Maneka Gandhi case, wherein this right is recognized, subject to

legal restrictions satisfying the requirements as laid down in the Maneka

Gandhi case. However, if the courts were to address the issue of right to

privacy under Article 21 afresh, there is little doubt that it would conclude that

there does exist a right to privacy. Such a statement will not be valid law unless

stated by a bench of more than six judges so as to effectively overrule Kharak

Singh. On a harmonious interpretation of the legal principles as laid down by

the Supreme Court at different points of time, it is sufficient to conclude the

existence of right to privacy under Part III of the Constitution. The first

principle was stated in Kharak Singh, which said that ‘personal liberty’ used in

the Article 21 is ‘a compendious term to include within itself all varieties of

rights which go to make up the personal liberty of man other than those

dealtwith in several clauses of Article 19(1).’ The second and third principles

were laid down in ManekaGandhi, which stated that any law interfering with

‘personal liberty’ must be just, fair and reasonable and that an unnamed right

may be regarded as part of a named fundamental right if it partakes of the same

basic nature and character of the named right Privacy is also a feature of the

dignity of an individual that the preamble to the Constitution assures every

individual. Thus the right is not merely a negative mandate upon the state not to

encroach upon the private space of the individual but is also a positive

affirmation on the state to create adequate institutions that would enable one to

effectively protect his private life. Thus the right to privacy has a strong

constitutional edifice, which could, if clarified by an appropriate Bench of the

Supreme Court, settle this judicial controversy at rest.