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Dr D Y CHANDRACHUD, J This judgment has been divided into sections to facilitate analysis. They are :

A     The reference
B     Decision in M P Sharma
C     Decision in Kharak Singh
D     Gopalan doctrine: fundamental rights as isolated silos
E     Cooper and Maneka: Interrelationship between rights
F     Origins of privacy
G     Natural and inalienable rights
H     Evolution of the privacy doctrine in India
I     The Indian Constitution

          •   Preamble
          •   Jurisprudence on dignity




            •   Fundamental Rights cases
            •   No waiver of Fundamental Rights
            •   Privacy as intrinsic to freedom and liberty
            •   Discordant Notes    :       (i)        ADM Jabalpur
                                            (ii)       Suresh Koushal

J   India’s commitments under International law
K   Comparative law on privacy
    (i)         UK decisions
    (ii)        US Supreme Court decisions
    (iii)       Constitutional right to privacy in South Africa
    (iv)        Constitutional right to privacy in Canada
    (v)         Privacy under the European Convention on Human Rights and
                the European Charter
    (vi)        Decisions of the Inter-American Court of Human Rights


L   Criticisms of the privacy doctrine
    a           Thomson’s Reductionism
    b           Posner’s Economic critique
    c           Bork’s critique
    d           Feminist critique

and to dignity, liberty and autonomy.

49 Yet a close reading of the decision in Gobind would indicate that the Court eventually did not enter a specific finding on the existence of a right to privacy under the Constitution. The Court indicated that if the Court does find that a particular right should be protected as a fundamental privacy right, it could be overridden only subject to a compelling interest of the State :

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be 277 US 438 (1928) Supra note 6, at page 155 (para 20)  PART H whether a State interest is of such paramount importance as would justify an infringement of the right.”66 (emphasis supplied) While emphasising individual autonomy and the dangers of individual privacy being eroded by new developments that “will make it possible to be heard in the street what is whispered in the closet”, the Court had obvious concerns about adopting a broad definition of privacy since the right of privacy “is not explicit in the Constitution”.

79 In Ramlila Maidan Incident v Home Secretary, Union of India134, Justice B S Chauhan in a concurring judgment held that:

“Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the Constitution of India by this Court. Illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under our Constitution. Such a right has been extended even to woman of easy virtues as she has been held to be entitled to her right of privacy. However, right of privacy may not be absolute and in exceptional circumstance particularly surveillance in consonance with the statutory provisions may not violate such a right.”135 In the view of the Court, privacy and dignity of human life have “always been considered a fundamental human right of every human being” like other constitutional values such as free speech. We must also take notice of the construction placed by (2011) 13 SCC 155 Ibid, at page 156 (para 6) (2012) 5 SCC 1 Ibid, at pages 119-120 (para 312)  PART H the judgment on the decision in Kharak Singh as having “held that the right to privacy is a part of life under Article 21 of the Constitution” and which was reiterated in PUCL.

91 The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21  PART H and the freedoms set out in Article 19. In addition, India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy. 153 In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party. Consequently, as new cases brought new issues and problems before the Court, the content of the right to privacy has found elaboration in these diverse contexts. These would include telephone tapping (PUCL), prior restraints on publication of material on a death row convict (Rajagopal), inspection and search of confidential documents involving the banker - customer relationship (Canara Bank), disclosure of HIV status (Mr X v Hospital Z), food preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of pregnancy (Suchita Srivastava), scientific tests in criminal investigation (Selvi), disclosure of bank accounts held overseas (Ram Jethmalani) and the right of transgenders (NALSA). Early cases dealt with police regulations authorising intrusions on liberty, such as surveillance. As Indian society has evolved, the assertion of the right to privacy has been considered by this Court in varying contexts replicating the choices and autonomy of the individual citizen. See Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation, Eastern Book Company (2014), for a comprehensive account on the right to privacy and privacy laws in India.  PART I 92 The deficiency, however, is in regard to a doctrinal formulation of the basis on which it can be determined as to whether the right to privacy is constitutionally protected. M P Sharma need not have answered the question; Kharak Singh dealt with it in a somewhat inconsistent formulation while Gobind rested on assumption. M P Sharma being a decision of eight judges, this Bench has been called upon to decide on the objection of the Union of India to the existence of such a right in the first place.