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Introduction-
The said case pertains to the time of Proclamation of Emergency by the then ruling
government of Indira Gandhi and Presidential order of the same was issued when election
of Indira Gandhi were termed to be illegal. The case arose out of a contention that
whether the right of a person to approach respective High Court gets quashed when his
fundamental rights are not given or suppressed, especially Article 14, and 21 during the
emergency and enforcement of such rights remain suspended for the period of
Proclamation of Emergency in force. The judgment was delivered on April 28 th, 1976 by
the Constitutional bench of five judges including the then Chief Justice A.N. Ray, out of
which four were in favour of suspension of such right and liberty and one dissenting
rejected such contention. As far as majority of the judgment goes, it was established that
a person’s right to approach High Court under Article 226 of the Indian Constitution for
Habeas Corpus or any other writ challenging the legality of an order of detention at the
time of Proclamation of Emergency remains suspended and that person cannot approach
any High Court for the remedy or get his right. This case was infamously called
as Habeas Corpus case. Till date, the decision taken by the Court holds badly on the
ground of equity, justice and good conscious. The Latin term Habeas Corpus means “you
may have the body” and writ of securing a person’s liberty is called Habeas Corpus.
Issues-
detention?
Does detenue hold locus standi in Court during the period of Emergency?
Rules-
Upon the issues, it was discussed by the State that the only purpose of Emergency in the
Constitution is to guarantee special power to the Executive machinery which can hold
discretion over the implementation of law and whatever State considers, it shall be held
valid. Filing writ petition in High Courts under Article 226 are suspended and petitioners
had no right to approach the Court for the implementation of the same and this would
have logically dismissed such petitions. The fact that Emergency provisions in Part XVIII
of the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are
necessities in regard to economy and military security of the State. The validity of the law
rights which were suspended by such order. This answers all the issues like “Whether,
under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus
be maintained in High Court by a person challenging his unlawful detention” for which
the answer is No, one cannot approach the High Court for restoration of his fundamental
right under any Article of the Indian Constitution. Upon the issue of locus standi, the
Judgment-
In view of the Presidential order dated 27 June 1975 no person has any locus standi to
move any writ petition under Article 226 before a High Court for habeas corpus or any
other writ or order or direction to challenge the legality of an, order of detention on the
ground that the order is not under or in compliance with the Act or is illegal or is vitiated
valid;
4. The petitions before the High Courts are now to be disposed of in accordance with
The above said judgement was given by four out of five judges. They were the then Chief
Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati.
The dissenting Judgment was given by Justice Khanna who ended his judgment by
saying “As observed by Chief Justice Huges, Judges are not there simply to decide cases,
but to decide them as they think they should be decided, and while it may be regrettable
that they cannot always agree, it is better that their independence should be maintained
and recognized than that unanimity should be secured through its sacrifice. A dissent in a
Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possible correct the error into
which the dissenting Judge believes the court to have been betrayed.” He paid the price of
his opinion when his junior M.H. Beg was appointed as Chief Justice bypassing him in
seniority. In M.M. Damnoo v. State of J&K 1 the Court required the State Government to
produce the file confining the grounds of detention so that the Court could satisfy itself
That “the grounds on which the detenu has been detained have relevance to the security
of the State”. It would, therefore, be seen that if there is a legislative provision which
prohibits disclosure of the grounds, information and materials on which the order of
detention is based and prevents the Court from calling for the production of such
grounds, information and materials, it would obstruct and retard the exercise of the
constitutional power of the High Court under Article 226 and would be void as offending
that Article.
In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this
entire way of thinking. Justice Khanna’s dissent was not based merely on a difference
with the majority about the question of whether rights existed outside the Constitution or
not. Rather, his different was more fundamental, and went to the root of what it meant to
constitutional republic was the maintenance of a balance of power between State and
individual. The issue was not whether the State may or may not abuse its powers, and the
manner in which it might abuse its power in order to violate individual liberty. The issue,
rather, was that the very existence of certain kinds of power with the State was a violation
of liberty. As he noted:
“…experience should, teach us to be most on our guard to protect liberty when the
Government’s purposes are beneficent. Men born to freedom are naturally alert to repel
insidious encroachment by men of zeal, well-meaning but lacking in due deference for
And:
Whether such things actually come to pass is not the question before us; it is enough to
state that all these are permissible consequences from the acceptance of the contention
that Article 21 is the sole repository of the right to life and personal liberty and that
consequent upon the issue of the Presidential order, no one can approach any court and
seek relief during the period of emergency against deprivation of life or personal liberty.
In order words, the position would be that so far as executive officers are concerned, in
matters relating to life and personal liberty of citizens, they would not be governed by
any law, they would not be answerable to any court and they would be wielding more or
Constitutionalism meant curtailing what the State was able to do its citizens. To give the
State power to both determine the state of exception, and then also to determine what
rights and remedies citizens had during such a period, simply on the invocation of salus
Consequently, Justice Khanna rejected the argument that, in the interests of public safety
and public welfare, the Executive could be left to solely determine the scope and ambit of
rights enjoyed by citizens, noting that “the power of the courts to grant relief against
arbitrariness or absence of authority of law in the matter of the liberty of the subject may
is, the idea that during the state of exception, the Executive was vested with the sole
power of curtailing the liberty of any individual it suspected of being a threat to the
established order:
detention order. It is indeed largely from the past events showing tendencies or
inclinations of a person that an inference can be drawn that he is likely in the future to act
in a particular manner. In order to justify such an, inference, it is necessary that such past
for instance, be normally irrational to take into account the conduct an activities of a
person which took place ten years, before the date of ins detention and say that even
though after the said incident took place nothing is known against the person indicating
ins tendency to act in a prejudicial manner, even so on the strength of the said incident
which is ten years old, the authority is satisfied that ins detention is necessary. It is both
inexpedient and undesirable to lay down an inflexible test as to how far distant the past
conduct or the antecedent history should be for reasonably and rationally justifying the
conclusion that the person concerned if not detained may indulge in prejudicial activities.
The nature of the activity would have also a bearing in deciding the question of
proximity. If, for example, a person who has links with a particular’ foreign power is
known to have indulged in subversive activities when hostilities broke out with that
foreign power and hostilities again break out with that foreign power after ten years, the
authorities concerned, if satisfied on the basis of the past activities that it is necessary to
detain him with a view to preventing him from acting; in a manner prejudicial to the
security of India, might well pass a detention order in respect of that person. The fact that
in such a case there is a time lag of ten years between the activities of the said person and
the making of the detention order would not vitiate such an order. Likewise, a remote
prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an
inference that the two are a part of chain of prejudicial activities indicative of a particular
inclination. In such an event the remote activity taken along with the recent activity
would retain its relevance and reliance upon it would not introduce an infirmity. If,
however, in a given case and in the context of the nature of activity the time lag between
the prejudicial activity of a detenu and the detention order made because of that activity
is ex facie long, the detaining authority should explain the delay in the making of the
detention order with a view to show that there was proximity between the prejudicial
activity and the) detention order. If the detaining authority fails to do so, in spite of an
opportunity having been afforded to it, a serious infirmity would creep into the detention
order.
Analysis-
Upon the analysis of the judgment, there are multiple observations on the given case. The
Supreme Court in this case observed that Article 21 covers right to life and personal
liberty against its illegal deprivation by the State and in case of suspension of Article 21
by Emergency under Article 359, the Court cannot question the authority or legality of
such State’s decision. Article 358 is much wider than the Article 359 as fundamental
rights are suspended as whole whereas Article 359 does not suspend any rights. Even
being Emergency provisions under Article 359 (1) grants special power and status to the
powers, leading to a system of check and balance and limited power of the Executive.
The nexus between State and Executive is erroneous and the effect of suspension of such
rights will only result in extra power to legislature which might create laws against
fundamental rights. This act should not be considered as a “power” of the Executive or
right of it. There is a legal extent till which a State can act in or against the citizens and in
this case, it was high misuse of power of personal political gain of a single person.
During Emergency, it is nowhere mentioned that the power of State “increases” from its
original power under Article 162. Also, State only holds the right of arrest if the alleged
act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is
unfulfilled then detention is beyond the power of State. The decision by the Supreme
Court is said to be the biggest erroneous judgment till date. The dissenting opinion of
Justice Khanna still holds more value than the majority judgment including the then
Chief Justice. The wrong intent of Indira Gandhi’s government was seen when Justice
Khanna was to ask the first uncomfortable question. “Life is also mentioned in Article 21
and would Government argument extend to it also?” There was no escape. Without
batting an eyelid Niren De answered, ‘Even if life was taken away illegally, courts are
helpless’. Before Proclamation of Emergency there was strong political instability in the
Country after the Lok Sabha election of Indira Gandhi was termed as illegal. This whole
exercise was to put opposition under pressure and during the process, even Supreme
Court made major errors in the judgement and it can be said to be purely unconstitutional.
Only the courage of single judge is said to be worth reading and it was in favour of
humanity and liberty. Justice Bhagwati was quoted as “I have always leaned in favour of
upholding personal liberty, for, I believe, it is one of the most cherished values of
mankind, without it life would not be worth living. It is one of the pillars of free
democratic society. Men have readily laid down their lives at its altar, in order to secure
it, protect it and preserve it. But I do not think it would be right for me to allow my love
provision of the Constitution a construction which its language cannot reasonably bear.”
The day when this judgment was pronounced, it was termed as “darkest day of the
democracy” and it was matched with the regime and rise of Hitler. On top of all, this
judgment did not favour rule of law. As a judge, the focus is on public benefit or on
something which is good for population but this judgment seemed to favour only one
person. The judgment in this case can be compared to the judgment of Raj Narain’s case
where Indira Gandhi was given a clean chit by the Supreme Court after being held guilty
by Allahabad High Court. One can say that common man’s trust on judiciary has been
shaken by these two judgments which happened almost simultaneously. Justice Khanna
solely relied on the judgment of Makkhan Singh v. State of Punjab2 in which he noted: “If
in challenging the validity of his detention order, the detenu is pleading any right outside
the rights specified in the order, his right to move any court in that behalf is not
suspended, because it is outside Article 359(1) and consequently outside the Presidential
order itself. Let us take a case where a detenu has been detained in violation of the
mandatory provisions of the Act. In such a case, it may be open to the detenu to contend
been contravened. Such a plea is outside Article 359(1) and tile right of the detenu to
move for his release on such a ground cannot be affected by the Presidential order”.
Suspension of Article 21 would simply mean deprivation of right of life and liberty and
this is against the basic right along with the Articles of Universal Declaration of Human
Rights of which India is a part. This single case became example of how four able judges
of the apex court of the country made a blunder under the wrong influence of the wrong
person. The Supreme Court violated all fundamental rights with that decision. It was the
darkest hour of Indian judiciary which struck at the very heart of fundamental rights. All
four judges with the exception of Justice Khanna went on to become Chief Justices of
India. In 2011, Justice Bhagwati expressed regret by saying: “I was wrong. The majority
judgment was not the correct judgment. If it was open to me to come to a fresh decision
in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I
yielded to my colleagues. Initially, I was not in favour of the majority view. But
ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that
time, a young judge…I was handling this type of litigation for the first time. But it was an
act of weakness on my part.” Such acceptance from the judge mean how grave the
situation was that time and what impact it left on India. The apex court recalled the
Lecture on February 25, 2009 that the majority decision in the Emergency case be
population in 1977, the Supreme Court in Maneka Gandhi v. Union of India 3changed
the position and gave fundamental character to the right in Article 21 by establishing a
link between Articles 14, 19 and 21 which was denied in A.K. Gopalan v. State of
Madras4 particularly in respect of Articles 19 and 21. Both these Articles cannot be
separated and not exclusive of each other. It was further contended that the object of
Presidential order under Article 359 was to remove legal problems and it was easier to
make laws against fundamental rights. The obligation of the government to act according
to the law and suspension of Article 21 did not automatically entail the suspension of rule
of law. Following Shivkant Shukla Case, the Supreme Court in Union of India v.
Bhanudas Krishna Gawde5 went one step further and held that Presidential order issued
under Article 359 were not circumscribed by any limitation and their applicability was
not dependent on fulfilment of any condition laid before. These order impose a blanket
ban on any and every judicial enquiry into validity of an order depriving someone of his
liberty, no matter how it originated whether from an order directing the detention or from
44th Amendment
amendment enacted during the emergency. It also tried to ensure that in future, an
emergency would not be easily imposed, also added some features to prevent any future
misuse of power.
It declared that “Article 20 & Article 21 will be never suspended even during emergency
and other fundamental rights won’t suspend automatically, it needs separate order by
president”.
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
The majority view in the Shivkant Shukla case has been completely negatived by
no more longer a law. Now the enforcement of Article 20 and 21 cannot be suspended in
any situation and the Court observed that Article 21 binds not only the executive but also
the legislature and thereby correcting Justice Khanna’s stance that suspension of Article
21 relieves the legislature of its constraints but not the executive which can never deprive
a person of his life and liberty without the authority of law and such detention can be
challenged on grounds indicated in Makhan Singh Case. Articles 352 and 359 have not
been invoked since revocation of Proclamation of Emergency in 1971 and 1975 in early
1977. Also, 44th Amendment changed “internal disturbance” into “armed rebellion” and
internal disturbance not amounting to armed rebellion would not be a ground to the issue
of Emergency were made so that no government in future can misuse this provision of
Judgment’s Remark:
The Proclamation and arbitrary use of power by the State machinery and taking away the
personal liberty of a number of people along with judicial stamp can be considered one of
the most erroneous judgment till date. Supreme Court went on to elaborate the
legitimacy after it faced criticism over the judgment and damage it had done. The wrong
figure that had her agenda to fulfil. While the judgment is said to be a mistake on many
occasions by jurists and apex court, the ruling was not overruled formally for a longer
period even after admitting the error. This was noted by the bench of Justice Ashok
Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which was
explained by Justice Khanna holds much greater force than what it was in 1976. There
has to be a clear overruling of this judgment so that theoretical nature of Rule of Law can
be made clear along with its applicability to our justice system. Also, further provisions
shall be made to ensure that no political agenda should overshadow justice and equity of
citizens.
Recent Developments:
The Supreme Court in Remdeo Chauhan v. Bani Kant Das 6, has admitted that its
notorious Emergency-era decision, ADM Jabalpur, may have violated several persons’
human rights. The court expressed its emphatic view that the majority judgment in ADM
Jabalpur was itself violative of fundamental rights. In their judgment, Justices Ganguly
and Alam reject Chauhan’s claim of inadequate representation. They point out, somewhat
Article 32 proceedings, although they acknowledge, without additional comment, that the
lawyer had not participated in the oral arguments. The bench then discusses whether there
are other grounds to entertain the second review. After carefully reviewing applicable
case law, the bench considers whether the Court erred in admonishing the Commission
for intervening on Chauhan’s behalf. Ganguly notes that an underlying assumption of the
May 2009 decision was that the Supreme Court cannot violate human rights. This
assumption, he argues, is not correct, as it often has to correct errors by lower courts and
tribunals that breach the parties’ human rights. Ganguly then goes on to state:
“The instances of this Court’s judgment violating the human rights of the citizens may be
extremely rare, but it cannot be said that such a situation can never happen”.
Ganguly argues that Jabalpur was one such situation where there is “no doubt that the
Chief Justice Venkatachalliah’s 2009 Khanna lecture and concludes that Justice HR
Khanna’s dissent in Jabalpur became the “law of the land” after the Forty-Fourth
Amendment.
That Jabalpur was wrongly decided was no breaking news. This fact has been
acknowledged by the Court itself, most recently in Coelho v. Tamil Nadu.7 Speaking for
a nine-judge bench, Chief Justice Sabharwal conceded that that Jabalpur‘s restrictive
The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs
Union of India8 is now four-and-a-half months old. The verdict, which held that there
exists a fundamental right to privacy under the Indian Constitution, has been analysed
threadbare. Its implications for decisional autonomy, personal choice, State surveillance,
informational self-determination, and many other facets of privacy, have been debated
and discussed. In the coming months, the Supreme Court will have an opportunity to
cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these
issues. However, there is one aspect of the judgment that has received universal
approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment
in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted
preventively detained by the State had the right to approach the Courts in a habeas
corpus petition. The background context was the existence of a Presidential proclamation
of a State of Emergency; this Proclamation also suspended the the locus standi of all
individuals to move the Courts for relief, in case they were detained. A majority of the
Supreme Court held that the Presidential Proclamation had validly suspended the remedy
of habeas corpus under the Constitution; and because there existed no rights or
remedies outside the confined of the Constitution, the Presidential Proclamation acted as
a complete bar to exercising the fundamental right to life and liberty. Consequently, a
detained person could not approach the Courts arguing that his detention was illegal or
unconstitutional.
Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was
that there were certain basic rights that were recognised by the Constitution, but
not conferred by it. These rights were inalienable, and inhered in all human beings simply
by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding
in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.
ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the
existence of a right. The Presidential proclamation in question provided that the right of
any person including a foreigner to move any Court for the enforcement of the rights
conferred by Article 14, Article 21 and Article 22 of the Constitution would remain
suspended for the period of the Emergency. All four judges in the majority held that by
virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was
removed or ceased to exist; it was simply that a detenu could not approach the Court
Further ADM Jabalpur stood for the proposition that the liberty of the individual was not
a paramount value under the Constitution, but simple one among many values to be
“salus populi est supreme lex” (“regard for public welfare is the highest law”). For
example, Justice Beg warned against “a too liberal application of the principle that
courts must lean in favour of the liberty of the citizen, which is, strictly speaking a
principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from
the belief that individual liberty was a “gift” bestowed by the Constitution and the State,
which could be withdrawn during a state of exception. For this, all for judgments of the
majority relied upon the wartime British judgment in Liversidge vs Andersen, which
had upheld the untrammeled power of the Home Secretary to detain people, free from the
Proposition One: The decision in M P Sharma which holds that the right to privacy
Recall that the reason for the initial reference was the State’s contention that the
judgments of the Supreme Court in M.P. Sharma9 (8 judges) and in Kharak Singh10 (6
judges) had held that there was no fundamental right to privacy under the Indian
Constitution, and all subsequent judgments to the contrary had been decided by smaller
of these judgments supported the State’s claim. In Puttaswamy, four out of the six
opinions examined the issue in detail, and entirely accepted the Petitioners’ arguments.
On M.P. Sharma, Justices Nariman (para 27), Chelameswar (para 7), Bobde (para 5), and
Chandrachud (para 26) all agreed that M.P. Sharma only held that the American Fourth
Amendment could not be incorporated into the guarantee against self-incrimination in the
Indian Constitution (Article 20(3)). However, the Fourth Amendment, which was limited
to protecting “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures” was not, and had never been,
exhaustive of the concept of privacy, even in the United States. Consequently, even
if M.P. Sharma was correct in refusing to find an analogue to the Fourth Amendment in
Article 20(3) of the Indian Constitution, that was no warrant for holding that there was no
fundamental right to privacy – a much broader and more compendious concept. In the
“M.P. Sharma is unconvincing not only because it arrived at its conclusion without
enquiry into whether a privacy right could exist in our Constitution on an independent
footing or not, but because it wrongly took the United States Fourth Amendment – which
Proposition Two: The decision in Kharak Singh to the extent that it holds that the
requirements, travel restrictions, shadowing, and so on (by arguing, in part, that there was
no fundamental right to privacy), but had struck down nightly domiciliary visits as a
The Court’s rejection of Kharak Singh was based on two prongs. First, it held that the
judgment was internally contradictory, because the Court could not have struck down
domiciliary visits on any other ground but that of privacy; indeed, in doing so, the Court
had itself quoted American judgments affirming a right to privacy. As Justice Nariman
noted:
“If the passage in the judgment dealing with domiciliary visits at night and striking it
down is contrasted with the later passage upholding the other clauses of Regulation 236
extracted above, it becomes clear that it cannot be said with any degree of clarity that the
majority judgment upholds the right to privacy as being contained in the fundamental
rights chapter or otherwise. As the majority judgment contradicts itself on this vital
aspect, it would be correct to say that it cannot be given much value as a binding
Justices Bobde (para 6), Chelameswar (para 9), and Chandrachud (para 27) agreed that
there existed a “logical inconsistency” within Kharak Singh, in that the Court could not
have struck down one facet of police surveillance without invoking the right to privacy.
Furthermore, the Justices also agreed that in any event, Kharak Singh’s finding that there
was no right to privacy under Article 21of the Constitution was based on a narrow
reading of the phrase “personal liberty”, which in turn was a relic of the judgment in A.K.
Gopalan.11 In A.K. Gopalan, the Supreme Court had adopted what Justice Chandrachud
called the “silos” approach to Part III of the Constitution, holding that each separate
clause dealt with a separate right, and each clause was hermetically sealed from all other
clauses. On this reading, “personal liberty” under Article 21 contained only what
remained after subtracting the various freedoms guaranteed in Article 19(1). The “silos
approach”, however, had been comprehensively rejected by the Supreme Court in R.C.
Cooper12, and in fact, in Maneka Gandhi13, the majority judgment in Kharak Singh had
Chandrachud observed:
“The jurisprudential foundation which held the field sixty three years ago in M P Sharma
and fifty five years ago in Kharak Singh has given way to what is now a settled position
in constitutional law. Firstly, the fundamental rights emanate from basic notions of
liberty and dignity and the enumeration of some facets of liberty as distinctly protected
rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the
validity of a law which infringes the fundamental rights has to be tested not with
reference to the object of state action but on the basis of its effect on the guarantees of
freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and
11 AIR 1950 SC 27
12 1970 AIR 564
13 Supra 3
Proposition Three: 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
The rejection of the State’s claim based on M.P. Sharma and Kharak Singh was only half
the story. The affirmative case for why privacy is a fundamental right remained to be
made. At the bar, privacy was argued to be latent within liberty, autonomy, and human
dignity, apart from being foundational towards ensuring that the freedom of speech,
expression, association, and religion, remained meaningful. All these arguments figure, in
Justice Chelameswar, for example, grounded his opinion in the concept of liberty.
decision”, he held that each of these aspects was central to the idea of liberty guaranteed
by both Articles 21 and 19 (paragraph 36). He then took a series of examples of privacy
violations (forced feeding, abortion, telephone tapping, and intimate association, to name
a few), and grounded them within the broader rights to freedom of the body (Article 21)
Justice Bobde founded his judgment on “two values… the innate dignity and autonomy of
man” (para 12), which he located in the overarching structure of the Constitution. In
addition, he held that privacy was a “necessary and unavoidable logical entailment of
rights guaranteed in the text of the constitution” (para 35). In Justice Bobde’s opinion,
we find the important insight that to be effectively exercised, the liberties in Article 19(1)
guaranteed freedoms” (para 29) and “an inarticulate major premise in Part III of the
Justice Nariman made an overarching argument, linking the three aspects of privacy
(bodily integrity, informational privacy, and the privacy of choice) (paragraph 81) with
the preamble of the Constitution, which guaranteed democracy, dignity, and fraternity
(paragraph 82). It was here that the constitutional foundations of privacy could be found.
“The dignity of the individual encompasses the right of the individual to develop to the
full extent of his potential. And this development can only be if an individual has
autonomy over fundamental personal choices and control over dissemination of personal
dignity, and fraternity – was simply meaningless without a right to privacy that
guaranteed, at the minimum, security of the body, security of personal information, and
employed by Justice Sapre, who noted that dignity imposes “an obligation on the part of
the Union to respect the personality of every citizen and create the conditions in which
every citizen would be left free to find himself/herself and attain selffulfillment.” (para 8)
It was also employed by Justice Kaul, who brought dignity and liberty together, noting
that “privacy… is nothing but a form of dignity, which itself is a subset of liberty” (para
Chandrachud in his judgment. He grounded privacy in dignity (paras 32, 107, and 113),
“inviolate personality… the core of liberty and freedom” (para 34), autonomy (paras 106
and 168), liberty (para 138), bodily and mental integrity (para 168), and across the
“The freedoms under Article 19 can be fulfilled where the individual is entitled to decide
upon his or her preferences. Read in conjunction with Article 21, liberty enables the
individual to have a choice of preferences on various facets of life including what and
how one will eat, the way one will dress, the faith one will espouse and a myriad other
the privacy of the mind. The constitutional right to the freedom of religion under Article
25 has implicit within it the ability to choose a faith and the freedom to express or not
express those choices to the world. These are some illustrations of the manner in which
privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution
does not contain a separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed
right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without
privacy. Both reside within the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate expression of the sanctity of the
Petitioners that privacy was a fundamental right, the Court could have chosen to give it a
narrow cast and frame. The Court may have limited it to an aspect of dignity, or restricted
it to a derivative right under Article 21. This would have thrown up difficult initial
barriers in future cases, compelling petitioners to shoehorn their claims within the
shifting and largely symbolic concept of dignity (and jurisdictions such as Canada
provide salutary warnings about how easy it is to constrict rights by pegging them to
dignity), or the (diluted) umbrella of Article 21. The Court, however, did the exact
opposite. Starting with the basic idea that privacy encompassed the body (and bodily
integrity), the mind (and informational self-determination), and intimate choices, all nine
judges agreed that privacy was at the heart of individual self-determination, of dignity,
autonomy and liberty, and concretely, inseparable from the meaningful exercise of
of the Constitution and incorporated into the text of Part III’s specific, enforceable rights.
This, in my view, is at the heart and soul of Puttaswamy, and the primary reason why this
jurisprudence, but across the world. The verdict locates privacy in the grand sweep of
democracy and within the core human values of autonomy, dignity, and freedom, while
also placing it within the realm of the concrete, the flesh-and-blood relationship between
the individual and the State. In its attention to the abstract and to the world of concepts, it
does not ignore the world in which individuals struggle against coercive State power; and
in its care to outline how privacy is concretely meaningful, it does not forget to include it
within that constellation of ideas that fame this reality and give it meaning. This is a
difficult path to travel. However, all nine judges have demonstrated the intellectual
courage required to travel it, and the result is a ringing endorsement of the central place
Proposition Four: Decisions subsequent to Kharak Singh which have enunciated the
As the Petitioners had repeatedly argued before the Court, there was no need to reinvent
the wheel. After Gobind vs State of MP14, there was an unbroken line of Supreme Court
judgments, spanning forty years, that had repeatedly affirmed the status of privacy as a
fundamental right (Justice Chandrachud’s judgment examines all the precedent on the
point). Petitioners asked the Court to affirm that line of judgments. The Court agreed.
The consequences of this – which we shall discuss in some of the subsequent posts – are
that the extended discussions in the separate opinions on the scope of privacy, its
operation in the public and the private spheres, and its limitations, cannot be studied in
isolation, but in the context of forty years of case law. The task of future benches now is
to build upon this existing jurisprudence, taking into account, of course, the insights
of Puttaswamy.
“While the privacy judgement is a cause for celebration, its full benefit will only come
real rights and liberties. Judicial action should spring at moments when the state
oversteps onto the citizen. Few would dispute that determinations on privacy would be of
greater benefit when the Supreme Court protects us with foresight rather than retrospect.”
The nine-judge bench of the Supreme Court has given us an outstanding foundation for a
and privacy. In the times to come, citizens will look to the Court to build upon that
foundation, and to carry through with the beginnings that it has made in Puttaswamy. But
in future, the situations that come before the Court will no longer be abstract, the
questions will no longer be purely legal, and the pressures will be real, not merely
academic. Puttaswamy only makes possible what will, in the last analysis, require judicial
courage and wisdom to accomplish: meaningful protection of the rights of the individual