Case BriefsSupreme Court

Supreme Court: Addressing an issue of public importance relating to difficulties faced by visitors at Shri Jagannath Temple (Puri), a Division Bench comprising of Adarsh Kumar Goel and Ashok Bhushan, JJ., passed an interim order issuing directions for regulation and upkeep of the Temple.

The writ petition was filed by Mrinalini Padhi, a practicing advocate before the Orrisa High Court, highlighting the issues of public importance which need to be addressed and monitored so as to ensure safe custody of the valuables of the Temple; proper hassle-free worship by the devotees; and the clean and hygienic environment in the Temple. The issues put forth, also include the harassment of visitors by sevaks of the Temple. The Hon’ble Supreme Court noticed that the issues raised, involve the enforcement of fundamental right under Article 25 and directive principles under Articles 38, 49, 51A (f) and (g) of the Constitution. The Court further observed pilgrimage centers are of undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centers not only for tourism but for seeking inspiration for righteous values.

Having regard to the nature of the issue, Hon’ble Court directed the District Judge, Puri, to submit a report on factual aspects of the matter including difficulties faced by visitors and deficiency in management. Further, the Administrator was directed to review arrangement of CCTV cameras; and ensure that no direct collection of offerings is made by any sevak. The State of Odisha was directed to constitute a committee to study the management of other important shrines. Hassle free darshan by the visitors and utilization of offerings for righteous objects was considered to be of prime importance by the Hon’ble Court; hence, it was observed that the sevaks need to be compensated by legitimate remuneration as determined by the concerned Authority. Mr. Gopal Subramanium, learned Senior Counsel, was appointed as the Amicus Curiae to assist the Court. The matter is to be listed on 5-7-2018 for further consideration. [Mrinalini Padhi v. Union of India, 2018 SCC OnLine SC 602, decided on 08.06.2018]

Hot Off The PressNews

After Ajay Bhushan Pandey, the CEO of UIDAI, made a PowerPoint presentation before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the technical and security aspects of Aadhaar in the last 2 days of the hearing, the petitioners submitted a list of questions based on the presentation. On Day 23 of the Aadhaar hearing, the Bench called upon Attorney General KK Venugopal to answer the said questions.

Below are the questions answered by the AG and the highlights of the Courtroom exchange on Day 23 of the Aadhaar hearing:

  • Q: What are the statistics of authentication failures?
  • AG: We cannot give a number because we don’t track this kind of information.
  • Q: What about the biometrics exception?
  • AG: There are other methods of authentication available like through mobile number. The QR code on Aadhaar card can also be scanned to get a person’s details, therefore, biometrics authentication is not the only way. Requesting entities have to provide exception handling measures. This is given in the Aadhaar Act, 2016 itself.
  • Chandrachud and Sikri, JJ:  We don’t know if the measures are being implemented on ground. Government will have to answer that at some point since UIDAI is only responsible for the architecture of Aadhaar. They cannot guarantee that there has been no denial of service.
  • AG:
    • There is no opt out option for Aadhaar, even for children.  Aadhaar was adopted to ensure that there are no fake identities. Aadhaar has strong de duplication detection system. 6.7 crores rejections have happened till now due to de duplication.
    • Aadhaar is an evolving technology. And all other alternatives were considered for a period of ten years. The Act can always be amended and rectified. The Aadhaar project is one of a kind and has been praised all over the world.
    • Aadhaar is a policy decision taken at the highest level of the Government, therefore, Courts should not interfere to determine its validity.
    • The judges have, Privacy Judgment, agreed that privacy is not absolute. Privacy judgment lays down the three conditions under which privacy can be invaded and Aadhaar satisfies all three. These conditions are:
      • There should be a legislation.
      • Legitimate state aim.
      • Proportionality.
    • Aadhaar invades privacy as little as possible. We couldn’t have formulated a law so that there could be a lesser invasion of privacy. This is the least encroachment of privacy.
    • Data protection expert Committee i.e. SriKrishna committee will submit it’s report by May 15.
    • The State can always enforce reasonable restrictions to protect legitimate state interests.
    • Privacy is nowhere described except in the dictionary. The court has to look at each individual case.
    • Curbing black money, providing subsidies, benefits and services are legitimate state interests of the State.
    • Right to live a life of dignity trumps right to privacy. Aadhaar in it’s initially stages was voluntary, therefore no one was coerced to enroll.
    • Before the Privacy judgement, there was no way for the Government or the people to know there was a right to privacy.

____________________________________________________________________________________________________________________________

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU SIngh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently dealt with a second appeal wherein the appellant contended that after having taken voluntary retirement from the post office, even though she was supposed to receive her on the 1st of every month, that was not the case when in March 2017, her pension was withheld for want of linkage of her Aadhaar to her pension account along with 55 other such similarly situated pensioners. She mentioned that the CPIO and the FAA had held back information which she sought, regarding the names of all the other pensioners whose pensions were withheld owing to the same reason forwarded to her as the authorities under the grab of Section 8(1)(j) of the RTI Act, 2005 refused to give out personal information which the appellant believed to be an unsatisfactory reply. The appellant also sought a copy of the order wherein it said that Aadhaar is necessary for payment of pension since that had not been produced to her yet.

Prof. M. Sridhar Acharyulu, sitting for the Commission, observed that pension “is a matter of life and living” for pensioners who are “totally dependent upon the paltry amount of pension”. Hence, information which relates to pension should be treated as information concerning life and hence, response should be given within 48 hours. Special mention was afforded to Section 7 of the RTI Act wherein it has been mentioned that the PIO shall “as expeditiously as possible” give out the information sought which was not done in the present case. Further on, the Commission notes that it is a duty under the Contract Act, Consumer Protection Act, Trusts Act and also the Right to Information Act to pay timely pension or to rectify any problem relating to payment of pension to relieve the pensioner of any suffering arising out of the delay/ non-payment of pension. The Commission held that the postal authorities have a statutory duty to disclose the reasons behind their demand of linking the Aadhaar with pension payment and withholding payment of pension on not doing so. The Commission referred to K.S Puttaswamy v. Union of India, (2015) 10 SCC 92 wherein the Court held that citizens cannot be forced to produce their Aadhaar to receive government welfare scheme benefits. This Court had further clarified in its order dated 15/12/2017 that such a compulsion couldn’t be made since that was in contravention of the citizens’ fundamental rights.

As for the issue of not presenting the appellant with the names of all the other people whose pension had been withheld on the same grounds as the appellants, the Commission did not think of such information being “personal information” which the CPIO would have to protect. The Commission thus directed the CPIO to show-cause why maximum penalty should not be imposed upon him for the wrongful reasons given by him in his reply and why the postal authority should not be ordered to pay compensation to the appellant for causing delay, loss and harassment to her in the entire process. Additionally, the Commission directed the respondent authority to provide the certified copies of the orders by which the other employees’ pension had been delayed along with their names. [N.N. Dhumane v. PIO, Department of Posts, 2018 SCC OnLine CIC 21, order dated 27.2.2018]

Case BriefsSupreme Court

Supreme Court:

“Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?” – Epicurus

This is one of the several profound quotes quoted by the Constitution Bench in its 538-page long verdict on the issue of Euthanasia.

In 4 separate but concurring opinions, the 5-judge Constitution Bench of Dipak Misra, CJ and AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. The Court said:

“the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”

CJI, for himself and Khanwilkar, J:

Explaining why only passive euthanasia is permissible and not active euthanasia, CJI, writing for himself and Khanwilkar, J, said that there is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and that once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors‘ dilemma or fear will have any place.

Living Will versus Advance Medical Directive:

The Court also refrained from using the term ‘living will’ and said that the concept ‘advance medical directive’ should be applied in our country. To understand both the concepts, the Court also provided with the definitions:

The Black’s Law Dictionary defines an Advance Medical Directive as,

“a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”

A Living Will, on the other hand, is

“a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider.”

Advance Medical Directive:

Laying down detailed safeguards and directions with respect to Advance Medical Directive, the Court that:

  • the said document can be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. However, it should be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information and must have characteristics of an informed consent given without any undue influence or constraint.
  • The said document shall be in writing clearly stating as to when medical treatment may be withdrawn, or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.
  • It should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by 173 the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.
  • If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.
  • Also, an individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Absence of Advance Medical Directive:

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board (HMB).
  • HMB, after discussing with the family physician and the family members of the patient, may form a preliminary opinion on whether or not to withdraw the treatment. The final decision, however, will be endorsed by JMFC after it has visited the patient, verified the medical reports, examined the condition of the patient and discussed with the family members of the patient.

Sikri, J:

It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

Chandrachud, J:

While upholding the legality of passive euthanasia (voluntary and nonvoluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function. Besides lending assurance to the decision of the treating doctors, the setting up of such committees and the processing of a proposed decision through the committee will protect the ultimate decision that is taken from an imputation of a lack of bona fides.

Bhushan, J:

In   cases   of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such   decision   be   taken   by   specified   competent   medical experts   and   be   implemented   after   providing   a   cooling period to enable aggrieved person to approach the court of law.

Conclusion:

  • Right to die with dignity is a fundamental right.
  • an adult human being having mental capacity   to   take   an   informed   decision   has   right   to refuse medical treatment including withdrawal from life saving devices.
  • A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
  • In case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and decision is to be taken by competent experts.

The Court, however, made clear that the Advance Directives and the safeguards as mentioned in the judgment will remain in force till the Parliament makes legislation on this subject. [Common Cause v. Union of India, 2018 SCC OnLine SC 208, decided on 09.03.2018]

To read the background of the case, click here.

Case BriefsHigh Courts

High Court of Jammu and Kashmir: In the recent judgment passed by a Single Judge Bench comprising of M.K. Hanjura, J., addressed a bail application of an under trial prisoner, and directed the trial court for a speedy trial.

The brief facts of the case being that the applicant (a murder convict) has been in police custody for the last 8 years, while his proceedings are still ongoing in the trial court. Thus, aggrieved by the delay, the applicant filed an application for grant of bail in the High Court of Jammu and Kashmir, with the contention that even after examining 39 out of 49 witnesses nothing has surfaced that would tie the applicant to the actual murder, and further argued that the only important witness has already been proved hostile and all the other testimonies did not support the prosecution’s story. The applicant even contested that the trial court has still not adhered to the High Courts’ order for speedy disposal of cases.

This Court while passing its judgment relied on landmark cases like Narayan Ghosh @ Nanu v. State of Orrisa, Ved Prakash @ Kalu (JC) v. State through the NCT (Delhi), (2007) 1 LR 2 Delhi 176 and State of Tamil Nadu v. S.A. Raja [Criminal Appeal No. 1470 of 2005], and held that bail cannot be granted since the applicant’s proceeding is still ongoing in the trial court, and further directed the trial court to complete the proceedings within 6 weeks because the fate of an accused cannot be left hanging as a “Trishunka” on the absolute discretion of the trial judge, and further held that ‘right to speedy trial is a fundamental right’ available to the accused. Furthermore, the Court directed apropos the cases relating to ‘under trial prisoners’ to be treated and categorized as “priority sector litigation”. [Rajesh Pandoh v. State, 2017 SCC OnLine J&K 859, decided on 30.12.2017]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ reserved the verdict on whether or not a terminally ill patient has a right to die with dignity.

The Court was hearing the reference of the 3-judge bench of P. Sathasivam, CJ, Ranjan Gogoi and Shiva Kirti Singh, JJ that has, in  Common Cause v. Union of India, (2014) 5 SCC 338, referred the matter relating to right to die or euthanasia to a Constitution Bench and noted:

“although the Constitution Bench in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur had upheld the same.”

The bench had said that it was extremely important to have a clear enunciation of law on euthanasia and hence, invited the Constitution bench to lay down exhaustive guidelines in this regard.

Earlier, in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, the bench of Markandey Katju and Gyan Sudha Misra, JJ, had refused to allow Aruna Shaunbaug, who had been the centre of the euthanasia debate as she spent 42 years of her life in a Permanent Vegetative State, to be euthanised but allowed terminally ill patients to choose to be passively euthanised. It was held that passive euthanasia can also only be allowed by the High Court and an application should be moved before it in this regard. Allowing passive euthanasia, the bench had said:

“if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialisation and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

The 5-judge bench heard the matter for 2 days continuously and will pronounce the verdict soon.

Case BriefsHigh Courts

Madras High Court: The petitioner, an organization involved in social activities for the benefit of general public intending to organize a public meeting to address the issue of corruption in Tamil Nadu, had submitted a request to the Inspector of Police, Mylapore, seeking permission to organize a public meeting in Mylapore on 08.10.2017. On 30.09.2017, the Inspector of Polioce, Mylapore issued a show-cause notice as to why permission could not be granted for conducting the said meeting. When the petitioners challenged the notice owing to their right to freedom of speech and expression and to assemble peacefully, the same was negated. As a result, the petitioners sought for a writ of declaration, declaring that the failure of the respondents to grant permission to conduct the public meeting as illegal and arbitrary.

The Assistant Commissioner of Police, Mylapore rejected the petitioner’s request for permission to conduct such a meeting on the ground that the respondent police had reliable information that the petitioner was trying to instigate people for creating law and order problem under the guise of organizing a meeting. The said rejection order also remarked that by taking advantage of the situation, anti-social elements may also infiltrate into the public and indulge in anti-social activities, creating ruckus.

Justice M.S. Ramesh, stating explicitly that the respondent being the authority to ensure that no untoward incident happen during the course of meeting, is also empowered to regulate the conduct of the meeting, observed: “I do not endorse the reasoning of the respondents for rejecting the petitioner’s request for the simple reason that the police department has been created only for the purpose of tackling the above problems. Since it is the fundamental right of the petitioner to conduct such a meeting, if at all, the respondent is of the view that they intend to instigate people and thereby create law and order problem, it was always open to them to permit the petitioner to conduct the meeting by imposing conditions.”

Granting liberty to the petitioner to approach the Deputy Commissioner of Police, Mylapore, Chennai, seeking for permission to conduct the public meeting, the Court issued directions to the Deputy Commissioner of Police to accord necessary permission to the petitioner for conducting the meeting on the date requested by the petitioner by imposing reasonable restrictions. [Arappor Iyakkam v. State of Tamil Nadu,  2017 SCC OnLine Mad 5785, decided on 5.10.2017]

Case BriefsSupreme Court

Supreme Court: In a landmark judgment that will remain law for years to come, the 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ has unanimously held:

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

In the 547-pages long judgment, Dr. D.Y. Chandrachud, J writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”

On the aspect of Data Protection, he said:

“Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state like protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.”

He also addressed the issue of rights of the LGBT community in Suresh Kumar Koushal v NAZ foundation, (2014) 1 SCC 1, where it was held that the prosecution of a miniscule fraction of the country’s population in 150 years cannot be made sound basis for declaring that section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. Stating that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion, he said:

“Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

All the remaining judges wrote separate but concurring judgments. Chelameswar, J, in his judgement, said:

“All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being.”

He, however, added that every right has limitations and the options canvassed for limiting the right to privacy should include: (a) Article 14 type reasonableness enquiry; (b) limitation as per the express provisions of Article 19; (c) a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21; and (d) a just, fair and reasonable standard per Article 21 plus the amorphous standard of ‘compelling state interest’, the last one being the highest standard of scrutiny.

Bobde, J, in his judgment, explained the test of privacy and said that privacy may be understood as the antonym of publicity. Giving examples, he wrote:

“taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one’s words by a loudspeaker would signal the opposite intent.”

Nariman, J, discussed the law laid down in ADM, Jabalpur v. Sivakant Shukla, (1976) 2 SCC 521 and said that after this judgment it will be clear that the majority judgment in the said case is no longer good law and that Khanna, J.’s dissent is the correct version of the law. He noted that:

“the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.”

On the importance of declaring privacy as a fundamental right, he said:

“Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes. Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.”

Sapre, J, wrote the right to privacy emanates 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. He also added:

“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.”

SK Kaul, J, on ADM Jabalpur judgment, said that it was an aberration in the constitutional jurisprudence of our country and it should be overruled as there is

“the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”

Stating that declaring right to privacy as a fundamental right is a call of today, he said:

“In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.”

All the judges unanimously overruled the law laid down in  M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P and said that all the decisions after the Kharak Singh case where it has been held that Privacy is fundamental right, lay down the correct position in law. [Justice KS Puttaswamy v. Union of India, 2017 SCC OnLine SC 996, decided on 24.08.2018]

Hot Off The PressNews

Supreme Court: In the landmark verdict, the 9-judge Constitution bench has declared that the Right to Privacy is a part of Article 21 & Part III of the Constitution. CJI Khehar, who had not authored the unanimous judgment but read it before a jampacked courtroom, said that MP Sharma case, Kharak Singh Case & any other judgments that say that privacy is not a fundamental right are overruled.

The bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ being a part of fundamental rights or not after the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & S.A. Nazeer, JJ said that in the light of the rulings by the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., holding that Right to Privacy is not a fundamental right, a larger bench needs to decide the issue.

Read the highlights of the hearing, here.

Read the details from the hearing, here.

Detailed report to follow.

OP. ED.

It is no news that the Aadhaar Scheme that makes it mandatory for the citizens to link their PAN cards with the Aadhaar cards, along with the fact that the Constitution of India does not specifically recognise the ‘Right to Privacy’ as a fundamental right has resulted into a nationwide debate. The 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ, that was hearing the Aadhaar right to privacy matter today found itself incompetent to decide the issue in the light of the decisions of larger benches that said that ‘right to privacy is not a fundamental right’ and as a result, tomorrow, a 9-judge bench will decide whether right to privacy is a fundamental right or not. Since, the right has not been recognized in Constitution, the Supreme Court has, on various occasions, defined it’s scope as per the principles of ‘Life and Personal Liberty’ as enshrined under the Constitution of India. The issue was first decided in 1954 and it still stands unresolved in 2017.

Below are the landmark judgments on the ‘right to privacy’ issue:

  • M. P. Sharma v. Satish Chandra, 1954 SCR 1077 : This is the first case that dealt with the issue concerning the right to privacy & the 8-judge bench categorically held that right to privacy is not fundamental right. Below is the relevant except from the judgment:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

  • Kharak Singh v. State of U.P., 1964 SCR 332 : The 4:2 majority of a 6-judge bench held that “the right of privacy is not a guaranteed right 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 a fundamental right guaranteed by Part III.”

However, K. Subba Rao, J, writing down the minority view for himself and J.C. Shah, J said that “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” Further defining the ‘right to personal liberty’, it was said that “it is a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.”

  • Gobind v. State of M.P., (1975) 2 SCC 148: Holding that the right to privacy is not absolute, the 3-judge bench said that “Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy.” It was further said that “as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
  • PUCL v. Union of India, (2004) 9 SCC 580: The 3-judge bench held that “Right to privacy is subservient to that of security of State.”
  • State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5: A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
  • District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496: A division bench held that “every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed.”
  • Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1: In the matter where the constitutionality of the 99th Constitutional Amendment & National Judicial Appointments Commission, 2014 was in question, this is what the the 5-judge bench said that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court said that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”
  • Rajagopal v. State of T.N., (1994) 6 SCC 632: A 2-judge bench defined the right to privacy as the right to be let alone. It held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21.

We also cannot ignore the fact that 2 out of the 9-judges that will hear the matter tomorrow, are of the opinion that the rulings in the MP Sharma and Kharak Singh cases are incorrect. J. Chelameswar and S. A. Bobde, JJ were a part of the 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 in which the Aadhaar matter was referred to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

A lot is at stakes when it comes to tomorrow’s hearing. A 9-judge bench’s decision might prove as a huge turning point. Will the decision prove to be a blow to the Aadhaar Scheme that the Government is so passionate about or will it end up sparking another debate on the fundamental rights of the citizens? Let’s wait and let tomorrow decide.

Case BriefsHigh Courts

Patna High Court: Stating that the punishments imposed in respect of the Liquor ban in the State of Bihar by way of the amendment to the Bihar Excise Act, 1915 are quite unreasonable and draconian and cannot be justified in a civilized society, the bench of Iqbal Ahmed Ansari, CJ and Navaniti Prasad Singh, J quashed the law imposing liquor ban in the State of Bihar.

The Court noticed that the punishment for any offence has been prescribed as not less than 10 years, which may extend to imprisonment for life and with fine, which shall not be less than Rs. one lakh, but may extend to Rs. 10 lakhs and that it totally takes away the discretion of the Court to give a lesser sentence depending upon the mitigating circumstances.  Explaining it by way of an example the Court said that if a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen.

On the question that whether the right to drink alcohol is a fundamental right, the bench gave different views. Navaniti Prasad Singh, J was of the opinion that State cannot dictate what a personwill eat and what he will drink and that right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. He said that a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. If the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.

Iqbal Ahmed Ansari, CJ, however, disagreed and held that when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. He added that though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one’s right to privacy, which is infringed or violated. If the right to consume intoxicating drink is held to be a fundamental right, one would be justified in saying that this right cannot be taken away or infringed by imposing total prohibition. [Confederation of Indian Alcoholic Beverage Companies v. State of Bihar, 2016 SCC OnLine Pat 4806, decided on 30.09.2016]