310. While it intervenes to protect legitimate State interests, the State must nevertheless put into place a robust regime that ensures the fulfilment of a threefold requirement. These three requirements apply to all restraints on privacy (not just informational privacy). They emanate from the procedural and content-based mandate of Article 21. The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement. Second, the requirement of a need, in terms of a legitimate State aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial review does not reappreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are Writ Petition (Civil) No. 494 of 2012 & connected matters Page 158 of 567 proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. Hence, the threefold requirement for a valid law arises out of the mutual interdependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms.
311. Apart from national security, the State may have justifiable reasons for the collection and storage of data. In a social welfare State, the Government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital State interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the State to insist on the collection of authentic data. But, the data which the State has collected has to be utilised for legitimate purposes of the State and ought not to be utilised unauthorisedly for extraneous purposes. This will ensure that the legitimate concerns of the State are duly safeguarded while, at the same time, protecting privacy concerns. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State. Digital platforms are a vital tool of ensuring good governance in a social welfare State. Information technology—legitimately deployed is a powerful enabler in the spread of innovation and knowledge.
312. A distinction has been made in contemporary literature between anonymity on one hand and privacy on the other. [See in this connection, Jeffrey M. Skopek, “Reasonable Expectations of Anonymity”, Virginia Law Review (2015), Vol. 101, at pp. 691-762.] Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways. Privacy involves hiding information whereas anonymity Writ Petition (Civil) No. 494 of 2012 & connected matters Page 159 of 567 involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the State may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the State preserves the anonymity of the individual it could legitimately assert a valid State interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.
313. Privacy has been held to be an intrinsic element of the right to life and personal liberty under Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. Like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.
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325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
S.A. Bobde, J. :
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 160 of 567
426. There is no doubt that privacy is integral to the several fundamental rights recognised by Part III of the Constitution and must be regarded as a fundamental right itself. The relationship between the right to privacy and the particular fundamental right (or rights) involved would depend on the action interdicted by a particular law. At a minimum, since privacy is always integrated with personal liberty, the constitutionality of the law which is alleged to have invaded into a rights bearer's privacy must be tested by the same standards by which a law which invades personal liberty under Article 21 is liable to be tested. Under Article 21, the standard test at present is the rationality review expressed in Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . This requires that any procedure by which the State interferes with an Article 21 right to be “fair, just and reasonable, not fanciful, oppressive or arbitrary” [Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at p. 323, para 48].
R.F. Nariman, J. :
526. But this is not to say that such a right is absolute. This right is subject to reasonable regulations made by the State to protect legitimate State interests or public interest. However, when it comes to restrictions on this right, the drill of various articles to which the right relates must be scrupulously followed. For example, if the restraint on privacy is over fundamental personal choices that an individual is to make, State action can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under Article 21 read with Article 19(1)
(a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or subordinate legislation to pass muster under the said article. Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster. In the ultimate analysis, the balancing act that is to be carried out between individual, societal and State interests must be left to the training and expertise of the judicial mind.
S.K. Kaul, J. :
638. The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to Writ Petition (Civil) No. 494 of 2012 & connected matters Page 161 of 567 privacy can be met by the test suggested for limiting the discretion of the State:
“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference.” Chelameswar, J.:
377. It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the Bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on case-to-case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution's liberty guarantee to contain a fundamental right to privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited. I only do this to indicate the direction of the debate as the nature of limitation is not at issue here.
378. To begin with, the options canvassed for limiting the right to privacy include an Article 14 type reasonableness enquiry [A challenge under Article 14 can be made if there is an unreasonable classification and/or if the impugned measure is arbitrary. The classification is unreasonable if there is no intelligible differentia justifying the classification and if the classification has no rational nexus with the objective sought to be achieved. Arbitrariness, which was first explained at para 85 of E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555, is very simply the lack of any reasoning.] ; limitation as per the express provisions of Article 19; a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21; and finally, a just, fair and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 162 of 567 reasonable standard per Article 21 plus the amorphous standard of “compelling State interest”. The last of these four options is the highest standard of scrutiny [ A tiered level of scrutiny was indicated in what came to be known as the most famous footnote in constitutional law, that is, fn 4 in United States v. Carolene Products Co., 1938 SCC OnLine US SC 93 : 82 L Ed 1234 : 304 US 144 (1938). Depending on the graveness of the right at stake, the court adopts a correspondingly rigorous standard of scrutiny.] that a court can adopt. It is from this menu that a standard of review for limiting the right to privacy needs to be chosen.
379. At the very outset, if a privacy claim specifically flows only from one of the expressly enumerated provisions under Article 19, then the standard of review would be as expressly provided under Article 19. However, the possibility of a privacy claim being entirely traceable to rights other than Article 21 is bleak. Without discounting that possibility, it needs to be noted that Article 21 is the bedrock of the privacy guarantee. If the spirit of liberty permeates every claim of privacy, it is difficult, if not impossible, to imagine that any standard of limitation other than the one under Article 21 applies. It is for this reason that I will restrict the available options to the latter two from the above described four.
380. The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto. [District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186] , [State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5] Gobind [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] resorted to the compelling State interest standard in addition to the Article 21 reasonableness enquiry. From the United States, where the terminology of “compelling State interest” originated, a strict standard of scrutiny comprises two things—a “compelling State interest” and a requirement of “narrow tailoring” (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, “compelling State interest” does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claimsit is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for Writ Petition (Civil) No. 494 of 2012 & connected matters Page 163 of 567 others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed, must depend upon the context of concrete cases. However, this discussion sets the ground rules within which a limitation for the right to privacy is to be found.”
82) In view of the aforesaid detailed discussion in all the opinions penned by six Hon’ble Judges, it stands established, without any pale of doubt, that privacy has now been treated as part of fundamental rights. The Court has held, in no uncertain terms, that privacy has always been a natural right which gives an individual freedom to exercise control over his or her personality. The judgment further affirms three aspects of the fundamental right to privacy, namely:
(i) intrusion with an individual’s physical body;
(ii) informational privacy; and
(iii) privacy of choice.
83) As succinctly put by Nariman, J. first aspect involves the person himself/herself and guards a person’s rights relatable to his/her physical body thereby controlling the uncalled invasion by the State. Insofar as the second aspect, namely, informational privacy is concerned, it does not deal with a person’s body but deals with a person’s mind. In this manner, it protects a person by giving her control over the dissemination of material that is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 164 of 567 personal to her and disallowing unauthorised use of such information by the State. Third aspect of privacy relates to individual’s autonomy by protecting her fundamental personal choices. These aspects have functional connection and relationship with dignity. In this sense, privacy is a postulate of human dignity itself. Human dignity has a constitutional value and its significance is acknowledged by the Preamble. Further, by catena of judgments, human dignity is treated as a fundamental right and as a facet not only of Article 21 but that of right to equality (Article 14) and also part of bouquet of freedoms stipulated in Article 19. Therefore, privacy as a right is intrinsic of freedom, liberty and dignity. Viewed in this manner, one can trace positive and negative contents of privacy. The negative content restricts the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual.
84) A brief summation of the judgment on privacy would indicate that privacy is treated as fundamental right. It is predicated on the basis that privacy is a postulate of dignity and the concept of dignity can be traced to the preamble of the Constitution as well as Article 21 thereof. Further, privacy is considered as a subset Writ Petition (Civil) No. 494 of 2012 & connected matters Page 165 of 567 of personal liberty thereby accepting the minority opinion in Kharak Singh v. State of U.P. & Ors.29 Another significant jurisprudential development of this judgment is that right to privacy as a fundamental right is not limited to Article 21. On the contrary, privacy resonates through the entirety of Part III of the Constitution which pertains to fundamental rights and, in particular, Articles 14, 19 and 21. Privacy is also recognised as a natural right which inheres in individuals and is, thus, inalienable. In developing the aforesaid concepts, the Court has been receptive to the principles in international law and international instruments. It is a recognition of the fact that certain human rights cannot be confined within the bounds of geographical location of a nation but have universal application. In the process, the Court accepts the concept of universalisation of human rights, including the right to privacy as a human right and the good practices in developing and understanding such rights in other countries have been welcomed. In this hue, it can also be remarked that comparative law has played a very significant role in shaping the aforesaid judgment on privacy in Indian context, notwithstanding the fact that such comparative law has only a persuasive value.
29 AIR 1963 SC 1295 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 166 of 567
85) The whole process of reasoning contained in different opinions of the Hon’ble Judges would, thus, reflect that the argument that it is difficult to precisely define the common denominator of privacy, was rejected. While doing so, the Court referred to various approaches in formulating privacy30. An astute and sagacious analysis of the judgment by the Centre for Internet and Society brings about the following approaches which contributed to formulating the following right to privacy:
(a) Classifying privacy on the basis of ‘harms’, thereby adopting the approach conceptualised by Daniel Solove. In his book, Understanding Privacy31, Daniel Solove makes a case for privacy being a family resemblance concept.
(b) Classifying privacy on the basis of ‘interests’: Gary Bostwick’s taxonomy of privacy is among the most prominent amongst the scholarship that sub-areas within the right to privacy protect different ‘interests’ or ‘justifications’. This taxonomy is adopted in Chelameswar, J.’s definition of ‘privacy’ and includes the three interests of privacy of repose, privacy of sanctuary and privacy of intimate decision. Repose is the ‘right to be let alone’, sanctuary is the interest which prevents others from knowing, 30 See the analysis of this judgment by the Centre for Internet and Society, https://cis- india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis 31 Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard University Press, 2008.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 167 of 567seeing and hearing thus keeping information within the private zone, and finally, privacy of intimate decision protects the freedom to act autonomously.
(c) Classifying privacy as an ‘aggregation of rights’: This approach in classifying privacy as a right, as highlighted above, is not limited to one particular provision in the Chapter of Fundamental Rights under the Constitution but is associated with amalgam of different but connected rights. In formulating this principle, the Court has referred to scholars like Roger Clarke, Anita Allen etc. It has led to the recognition of private spaces or zones as protected under the right to privacy (thereby extending the ambit and scope of spatial privacy), informational privacy and decisional autonomy.
86) The important question that arises, which is directly involved in these cases, is:
What is the scope of the right to privacy and in what circumstances such a right can be limited?
87) Concededly, fundamental rights are not absolute. The Constitution itself permits State to impose reasonable restrictions on these rights under certain circumstances. Thus, extent and scope of the right to privacy and how and when it can be limited Writ Petition (Civil) No. 494 of 2012 & connected matters Page 168 of 567 by the State actions is also to be discerned. As noted above, Nariman, J. has led the path by observing that “when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed”. Therefore, examination has to be from the point of view of Articles 14, 19 and 21 for the reason that right to privacy is treated as having intimate connection to various rights in Part III and is not merely related to Article 21. Looked from this angle, the action of the State will have to be tested on the touchstone of Article 14. This judgment clarifies that the ‘classification’ test adopted earlier has to be expanded and instead the law/action is to be tested on the ground of ‘manifest arbitrariness’. This aspect has already been discussed in detail under the caption ‘Scope of Judicial Review’ above. When it comes to examining the ‘restrictions’ as per the provisions of Article 19 of the Constitution, the judgment proceeds to clarify that a law which impacts dignity and liberty under Article 21, as well as having chilling effects on free speech which is protected by Article 19(1)(a), must satisfy the standards of judicial review under both provisions. Therefore, such restriction must satisfy the test of judicial review under: (i) one of the eight grounds mentioned under Article 19(2); and (ii) the restriction should be reasonable. This Court has applied multiple standards Writ Petition (Civil) No. 494 of 2012 & connected matters Page 169 of 567 to determine reasonableness, including proximity, arbitrariness, and proportionality. Further, the reasonable restrictions must be in the interests of: (i) the sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order, (v) decency or morality or (vi) in relation to contempt of court, (vii) defamation or (viii) incitement to an offence.
88) The judgment further lays down that in the context of Article 21, the test to be applied while examining a particular provision is the ‘just, fair and reasonable test’ thereby bringing notion of proportionality.
89) The petitioners have sought to build their case on the aforesaid parameters of privacy and have submitted that this right of privacy, which is now recognised as a fundamental right, stands violated by the very fabric contained in the scheme of Aadhaar. It is sought to be highlighted that the data which is collected by the State, particularly with the authentication of each transaction entered into by an individual, can be assimilated to construct a profile of such an individual and it particularly violates informational privacy. No doubt, there can be reasonable restrictions on this right, which is conceded by the petitioners. It is, however, argued that right to privacy cannot be impinged Writ Petition (Civil) No. 494 of 2012 & connected matters Page 170 of 567 without a just, fair and reasonable law. Therefore, in the first instance, any intrusion into the privacy of a person has to be backed by a law. Further, such a law, to be valid, has to pass the test of legitimate aim which it should serve and also proportionality i.e. proportionate to the need for such interference. Not only this, the law in question must also provide procedural guarantees against abuse of such interference.
90) At the same time, it can also be deduced from the reading of the aforesaid judgment that the reasonable expectation of privacy may vary from the intimate zone to the private zone and from the private zone to the public arena. Further, privacy is not lost or surrendered merely because the individual is in a public place. For example, if a person was to post on Facebook vital information about himself, the same being in public domain, he would not be entitled to claim privacy right. This aspect is highlighted by some of the Hon’ble Judges as under:
Dr. D.Y. Chandrachud, J.:
“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in Writ Petition (Civil) No. 494 of 2012 & connected matters Page 171 of 567 the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
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299. Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet, it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others, individuals are constantly engaged in behavioural patterns and in relationships impacting on Writ Petition (Civil) No. 494 of 2012 & connected matters Page 172 of 567 the rest of society. Equally, the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community. This state of flux which represents a constant evolution of individual personhood in the relationship with the rest of society provides the rationale for reserving to the individual a zone of repose. The lives which individuals lead as members of society engender a reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas where an individual desires to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives. For instance, an individual who possesses a plot of land may decide to build upon it subject to zoning regulations. If the building bye- laws define the area upon which construction can be raised or the height of the boundary wall around the property, the right to privacy of the individual is conditioned by regulations designed to protect the interests of the community in planned spaces. Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation.
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307. The sphere of privacy stretches at one end to those intimate matters to which a reasonable expectation of privacy may attach. It expresses a right to be left alone. A broader connotation which has emerged in academic literature of a comparatively recent origin is related to the protection of one's identity. Data protection relates closely with the latter sphere. Data such as medical information would be a category to which a reasonable expectation of privacy attaches. There may be other data which falls outside the reasonable expectation paradigm. Apart from safeguarding privacy, data protection regimes seek to protect the autonomy of the individual. This is evident from the emphasis in the European data protection regime on the centrality of consent. Related to the issue of consent is the requirement of transparency which requires a Writ Petition (Civil) No. 494 of 2012 & connected matters Page 173 of 567 disclosure by the data recipient of information pertaining to data transfer and use.” S.A. Bobde, J:
“421. Shri Rakesh Dwivedi, appearing for the State of Gujarat, while referring to several judgments of the Supreme Court of the United States, submitted that only those privacy claims which involve a “reasonable expectation of privacy” be recognised as protected by the fundamental right. It is not necessary for the purpose of this case to deal with the particular instances of privacy claims which are to be recognised as implicating a fundamental right. Indeed, it would be premature to do so. The scope and ambit of a constitutional protection of privacy can only be revealed to us on a case-by-case basis.”
91) Though Nariman, J. did not subscribe to the aforesaid view in totality, however, His Lordship has also given an example that if a person has to post on Facebook vital information, the same being in public domain, she would not be entitled to the claim of privacy right.
92) We would also like to reproduce following discussion, in the opinion authored by Nariman, J., giving the guidance as to how a law has to be tested when it is challenged on the ground that it violates the fundamental right to privacy:
“...Statutory provisions that deal with aspects of privacy would continue to be tested on the ground that they would violate the fundamental right to privacy, and would not be struck down, if it is found on a balancing test that the social or public interest and the reasonableness of the restrictions would outweigh the particular aspect of privacy claimed. If this is so, then statutes which would enable the State to contractually obtain information about persons would pass muster in given circumstances, provided they safeguard the individual right to privacy as well. A Writ Petition (Civil) No. 494 of 2012 & connected matters Page 174 of 567 simple example would suffice. If a person was to paste on Facebook vital information about himself/herself, such information, being in the public domain, could not possibly be claimed as a privacy right after such disclosure. But, in pursuance of a statutory requirement, if certain details need to be given for the statutory purpose concerned, then such details would certainly affect the right to privacy, but would on a balance, pass muster as the State action concerned has sufficient inbuilt safeguards to protect this right—viz. the fact that such information cannot be disseminated to anyone else, save on compelling grounds of public interest.”
93) One important comment which needs to be made at this stage relates to the standard of judicial review while examining the validity of a particular law that allegedly infringes right to privacy.
The question is as to whether the Court is to apply ‘strict scrutiny’ standard or the ‘just, fair and reasonableness’ standard. In the privacy judgment, different observations are made by different Hon’ble Judges and the aforesaid aspect is not determined authoritatively, may be for the reason that the Bench was deciding the reference on the issue as to whether right to privacy is a fundamental right or not and, in the process, it was called upon to decide the specific questions referred to it. We have dealt with this aspect at the appropriate stage. Principles of Human Dignity:
94) While undertaking the analysis of the judgment in K.S.
Puttaswamy, we have mentioned that one of the attributes laid down therein is that the sanctity of privacy lies in its functional Writ Petition (Civil) No. 494 of 2012 & connected matters Page 175 of 567 relationship with dignity. Privacy is the constitutional core of human dignity. In the context of Aadhaar scheme how the concept of human dignity is to be applied assumes significance.
95) In Common Cause v. Union of India32, the concept of human dignity has been explained in much detail 33. The concept of human dignity developed in the said judgment was general in nature which is based on right to autonomy and right of choice and it has become a constitutional value. In the last 40 years or so, this Court has given many landmark judgments wherein concept of human dignity is recognised as an attribute of fundamental rights. In the earlier years, though the meaning and scope of human dignity by itself was not expanded, this exercise has been undertaken in last few years. Earlier judgments have mentioned that human dignity is the intrinsic value of every human being and, in the process, a person’s autonomy as an attribute of dignity stands recognised. The judgments rendered in the last few years have attempted to provide jurisprudential basis to the concept of human dignity itself.
96) In National Legal Services Authority v. Union of India & Ors. 34 while recognising the right of transgenders of self determination 32 (2018) 5 SCC 1 33 See paras 72-79 of the judgment 34 (2014) 5 SCC 438 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 176 of 567 of their sex, the Court explained the contours of human dignity in the following words:
“106. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspect of self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.
107. More than 225 years ago, Immanuel Kant propounded the doctrine of free will, namely, the free willing individual as a natural law ideal. Without going into the detailed analysis of his aforesaid theory of justice (as we are not concerned with the analysis of his jurisprudence) what we want to point out is his emphasis on the “freedom” of human volition. The concepts of volition and freedom are “pure”, that is not drawn from experience. They are independent of any particular body of moral or legal rules. They are presuppositions of all such rules, valid and necessary for all of them.
108. Over a period of time, two divergent interpretations of the Kantian criterion of justice came to be discussed. One trend was an increasing stress on the maximum of individual freedom of action as the end of law. This may not be accepted and was criticised by the protagonist of “hedonist utilitarianism”, notably Bentham. This school of thought laid emphasis on the welfare of the society rather than an individual by propounding the principle of maximum of happiness to most of the people. Fortunately, in the instant case, there is no such dichotomy between the individual freedom/liberty we are discussing, as against public good. On the contrary, granting the right to choose gender leads to public good. The second tendency of the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 177 of 567 Kantian criterion of justice was found in reinterpreting “freedom” in terms not merely of absence of restraint but in terms of attainment of individual perfection. It is this latter trend with which we are concerned in the present case and this holds good even today. As pointed out above, after the Second World War, in the form of the UN Charter and thereafter there is more emphasis on the attainment of individual perfection. In that united sense at least there is a revival of the natural law theory of justice. Blackstone, in the opening pages in his “Vattelian Fashion” said that the principal aim of society “is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature….”
97) Thus, right of choice and right of self determination were accepted as facets of human dignity. It was also emphasised that in certain cases, like the case at hand (that of transgenders), recognition of this aspect of human dignity would yield happiness to the individuals and, at the same time, also be in public good.
98) Advancement in conceptualising the doctrine of human dignity took place in the case of Shabnam v. Union of India & Ors. 35 wherein this Court has gone to the extent of protecting certain rights of death convicts by holding that they cannot be executed till they exhaust all available constitutional and statutory remedies. In the process, the Court held as under:
““15. This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being 'as a human being'. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person's life, physical or mental welfare is harmed. It is in this sense torture, 35 (2015) 6 SCC 702 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 178 of 567 humiliation, forced labour, etc. all infringe on human dignity.
It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty; the right of the accused to a fair trial as well as speedy trial; right of legal aid, all part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity. Prisons reforms or Jail reforms measures to make convicts a reformed person so that they are able to lead normal life and assimilate in the society, after serving the jail term, are motivated by human dignity jurisprudence.
16. In fact, this principle of human dignity has been used frequently by Courts in the context of considering the death penalty itself. Way back in the year 1972, the United States Supreme Court kept in mind this aspect in the case of Furman v. Georgia 408 US 238 (1972). The Court, speaking through Brennan, J., while considering the application of Eighth Amendment's prohibition on cruel and unusual punishments, summed up the previous jurisprudence on the Amendment as 'prohibit(ing) the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual', therefore, if it does not comport with human dignity'. In Gregg v. Georgia 428 US 153 (1976), that very Court, again through Brennan, J., considered that 'the fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as non-humans, as objects to be toyed with an discarded. (It is), thus, inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity'. The Canadian Supreme Court, the Hungarian Constitutional Court and the South African Supreme Court have gone to the extent of holding that capital punishment constitutes a serious impairment of human dignity and imposes a limitation on the essential content of the fundamental rights to life and human dignity and on that touchstone declaring that dignity as unconstitutional.”
99) Next judgment in this line of cases would be that of Jeeja Ghosh Writ Petition (Civil) No. 494 of 2012 & connected matters Page 179 of 567 & Another v. Union of India & Ors.36 wherein the Court, while expanding the jurisprudential basis, outlined three models of dignity which have been discussed by us above. These were referred to while explaining the normative role of human dignity, alongside, in the following manner:
“37. The rights that are guaranteed to differently-abled persons under the 1995 Act, are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical.
Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption “Fundamental Rights”. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfilment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal. What are the dimensions of constitutional value of human dignity? It is 36 (2016) 7 SCC 761 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 180 of 567 beautifully illustrated by Aharon Barak (former Chief Justice of the Supreme Court of Israel) in the following manner: “The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.”
38. All the three goals of human dignity as a constitutional value are expanded by the author in a scholarly manner. Some of the excerpts thereof, are reproduced below which give a glimpse of these goals:
“The first role of human dignity as a constitutional value is expressed in the approach that it comprises the foundation for all of the constitutional rights. Human dignity is the central argument for the existence of human rights. It is the rationale for them all. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every person has the right to have rights… The second role of human dignity as a constitutional value is to provide meaning to the norms of the legal system. According to purposive interpretation, all of the provisions of the Constitution, and particularly all of the rights in the constitutional bill of rights, are interpreted in light of human dignity… Lastly, human dignity as a constitutional value influences the development of the common law. Indeed, where common law is recognised, Judges have the duty to develop it, and if necessary, modify it, so that it expresses constitutional values, including the constitutional value of human dignity. To the extent that common law determines rights and duties between individuals, it might limit the human dignity of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 181 of 567 one individual and protect the human dignity of the other.”
100) The concept was developed and expanded further in K.S.
Puttaswamy. The Court held that privacy postulates the reservation of a private space for an individual, described as the right to be let alone, as a concept founded on autonomy of the individual. In this way, right to privacy has been treated as a postulate of human dignity itself. While defining so, the Court also remarked as under:
“298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty...
Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised...”
101) This concept of dignity took a leap forwarded in the case of Common Cause v. Union of India37 pertaining to passive euthanasia. Though this right was earlier recognised in Aruna Ramachandra Shanbaug v. Union of India & Ors.38, a totally new dimension was given to this right, based on freedom of choice 37 (2018) 5 SCC 1 38 (2011) 4 SCC 454 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 182 of 567 which is to be given to an individual accepting his dignity. There were four concurring opinions. In one of the opinions 39, the aspects of dignity are succinctly brought out in the following manner:
“154. Dignity of an individual has been internationally recognised as an important facet of human rights in the year 1948 itself with the enactment of the Universal Declaration of Human Rights. Human dignity not only finds place in the Preamble of this important document but also in Article 1 of the same. It is well known that the principles set out in UDHR are of paramount importance and are given utmost weightage while interpreting human rights all over the world. The first and foremost responsibility fixed upon the State is the protection of human dignity without which any other right would fall apart. Justice Brennan in his book The Constitution of the United States: Contemporary Ratification has referred to the Constitution as “a sparkling vision of the supremacy of the human dignity of every individual”.
155. In fact, in Christine Goodwin v. United Kingdom the European Court of Human Rights, speaking in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms, has gone to the extent of stating that “the very essence of the Convention is respect for human dignity and human freedom”. In the South African case of S. v. Makwanyane, O’Regan, J. stated in the Constitutional Court that “without dignity, human life is substantially diminished”.
xx xx xx
157. The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, “Death plucks my ear and says, Live—I am coming”. That is the significance of living. But when a 39 Rendered by Dipak Misra, CJI Writ Petition (Civil) No. 494 of 2012 & connected matters Page 183 of 567 patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait?  Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around him/her think that science in its progressive invention may bring about an innovative method of cure? To put it differently, should he/she be “Guinea pig” for some kind of experiment? The answer has to be an emphatic “No” because such futile waiting mars the pristine concept of life, corrodes the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.
xx xx xx
159. In Mehmood Nayyar Azam v. State of Chhattisgarh, a two-Judge Bench held thus: (SCC p. 6, para 1) “1. … Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, “the reverence of life offers me my fundamental principle on morality”. The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands. The reverence of life is insegregably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, “a brief candle”, or “a hollow bubble”. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”.” xx xx xx
166. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 184 of 567 march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognise such dynamism. The Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] , as stated earlier, distinguishes attempt to suicide and abetment of suicide from acceleration of the process of natural death which has commenced. The authorities, we have noted from other jurisdictions, have observed the distinctions between the administration of lethal injection or certain medicines to cause painless death and non-administration of certain treatment which can prolong the life in cases where the process of dying that has commenced is not reversible or withdrawal of the treatment that has been given to the patient because of the absolute absence of possibility of saving the life. To explicate, the first part relates to an overt act whereas the second one would come within the sphere of informed consent and authorised omission. The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards. The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state. The words “no cure” have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to modern medical technology. It is a state where the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life is measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him. The dignity of life is denied to him as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy. In such a stage, he has no old memories or any future hopes but he is in a state of misery which nobody ever desires to have.Writ Petition (Civil) No. 494 of 2012 & connected matters Page 185 of 567
Some may also silently think that death, the inevitable factum of life, cannot be invited. To meet such situations, the Court has a duty to interpret Article 21 in a further dynamic manner and it has to be stated without any trace of doubt that the right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Here, the issue of choice also comes in. Thus analysed, we are disposed to think that such a right would come within the ambit of Article 21 of the Constitution.”
102) In the other opinion40, four facets of euthanasia were discussed, namely: (i) philosophy of euthanasia, (ii) morality of euthanasia,
(iii) dignity in euthanasia, and (iv) economics of euthanasia. While discussing dignity in euthanasia, the three models of dignity, namely, theological, philosophical and constitutional model, were highlighted. Thereafter, postulates of dignity have been explained in the following manner:
“292. Aharon Barak, former Chief Justice of the Supreme Court of Israel, attributes two roles to the concept of human dignity as a constitutional value, which are:
292.1. Human dignity lays a foundation for all the human rights as it is the central argument for the existence of human rights.
292.2. Human dignity as a constitutional value provides meaning to the norms of the legal system. In the process, one can discern that the principle of purposive interpretation exhorts us to interpret all the rights given by the Constitution, in the light of the human dignity. In this sense, human dignity influences the purposive interpretation of the Constitution. Not only this, it also influences the interpretation of every sub-constitutional norm in the legal system. Moreover, human dignity as a 40 Rendered by A.K. Sikri, J.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 186 of 567constitutional value also influences the development of the common law.
xx xx xx
295. Dworkin, being a philosopher-jurist, was aware of the idea of a Constitution and of a constitutional right to human dignity. In his book, Taking Rights Seriously, he noted that everyone who takes rights seriously must give an answer to the question why human rights vis-à-vis the State exist. According to him, in order to give such an answer one must accept, as a minimum, the idea of human dignity. As he writes:
“Human dignity … associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognising him as a full member of the human community, and holds that such treatment is profoundly unjust.”41
296. In his Book, Is Democracy Possible Here?42 Dworkin develops two principles about the concept of human dignity. First principle regards the intrinsic value of every person viz. every person has a special objective value which value is not only important to that person alone but success or failure of the lives of every person is important to all of us. The second principle, according to Dworkin, is that of personal responsibility. According to this principle, every person has the responsibility for success in his own life and, therefore, he must use his discretion regarding the way of life that will be successful from his point of view. Thus, Dworkin's jurisprudence of human dignity is founded on the aforesaid two principles which, together, not only define the basis but the conditions for human dignity. Dworkin went on to develop and expand these principles in his book, Justice for Hedgehogs (2011)43.
297. When speaking of rights, it is impossible to envisage it without dignity. In his pioneering and all-inclusive Justice for Hedgehogs, he proffered an approach where respect for human dignity, entails two requirements; first, self- respect i.e. taking the objective importance of one's own 41 Ronald Dworkin, Taking Rights Seriously (A&C Black, 2013) 239. 42 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press, 2006) 43 Harvard University Press, 2011.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 187 of 567life seriously; this represents the free will of the person, his capacity to think for himself and to control his own life and second, authenticity i.e. accepting a “special, personal responsibility for identifying what counts as success” in one's own life and for creating that life “through a coherent narrative” that one has chosen44. According to Dworkin, these principles form the fundamental criteria supervising what we should do in order to live well.45 They further explicate the rights that individuals have against their political community,46 and they provide a rationale for the moral duties we owe to others. This notion of dignity, which Dworkin gives utmost importance to, is indispensable to any civilised society. It is what is constitutionally recognised in our country and for good reason. Living well is a moral responsibility of individuals; it is a continuing process that is not a static condition of character but a mode that an individual constantly endeavours to imbibe. A life lived without dignity, is not a life lived at all for living well implies a conception of human dignity which Dworkin interprets includes ideals of self-respect and authenticity.”
103) In summation, it can be said that the concept of human dignity dates back to thousands of years. Historically, human dignity, as a concept, found its origin in different religions which is held to be an important component of their theological approach. Jurists have given this approach as ‘theological model’ of dignity. It is primarily based on the premise that human beings are the creation of God and cannot be treated as mere material beings. Human identity is more ethical than spiritual because man is creation of God; harm to a human being is harm to God. God, thus, wishes to grant human being recognition, dignity and 44 Kenneth W. Simons, “Dworkin's Two Principle of Dignity: An Unsatisfactory Non- Consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715 (2010)] 45 Footnote 33 above.
46 Footnote 32 above.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 188 of 567authority. It is also religious belief that God is rational and determines his goals for himself. Likewise, human being created by God too is rational and determines his own goal. Therefore, man has freedom of will. A couple of centuries ago, philosophical approach was given to the conception of human dignity. This sphere was headed by German Philosopher Immanuel Kant whose moral theory is divided into two parts: ethics and right. According to Kant, a person acts ethically when he acts by force of a duty that a rational agent self-legislates onto his own will. Thus, he talked of free will of the human being. For Kant, ethics include duties of oneself (for example - to develop one's talents) and to others (for example - to contribute to their happiness). This ability is the human dignity of man. Philosophical approach, thus, is metaethical one, which is a journey from ‘human being’ and ‘remaining human’. This is explained by Professor Upendra Baxi as the relationship between ‘self’, ‘others’ and ‘society’. In this philosophical sense, dignity is ‘respect’ for an individual person based on the principle of freedom and capacity of making choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’. To put it philosophically, each individual has a right to live her life the way she wants, without Writ Petition (Civil) No. 494 of 2012 & connected matters Page 189 of 567 any subjugation. One can rule others, but then it is never noble.
It is immoral because the other is not a means to you, the other is an end to herself. Kant also maintains that to use the other as a means is the basic immoral act. Everything else that is immoral is immoral because of this, so this should be the criterion: Are you using the other as a means? Someone has put this remarkably in the following words:
“Alexander the Great is not noble, only Gautam the Buddha is noble, for the simple reason that Buddha has no rule over others but he is a matter of himself.
There is no part of his being which is not in tune with him.
He has come to attain absolute harmony. There is no conflict in him, there is a reign of absolute peace. And his consciousness is supreme, nothing is above it – no instinct, no intellect, nothing is higher than his consciousness.”
104) Historically, a transition has taken place into the idea of dignity by transforming the amalgam of theological approach (man as creation of God deserving dignity) and philosophical approach based on morality, by elevating human dignity as a constitutional norm attaching constitutional value to it. It is a transition from ‘respect’ to ‘right’ by making respect as enforceable right. The manner in which it has happened in India has been traced above.
105) From the aforesaid discussion, it follows that dignity as a jurisprudential concept has now been well defined by this Court. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 190 of 567 Its essential ingredients can be summarised as under:
The basic principle of dignity and freedom of the individual is an attribute of natural law which becomes the right of all individuals in a constitutional democracy. Dignity has a central normative role as well as constitutional value. This normative role is performed in three ways:
First, it becomes basis for constitutional rights;
Second, it serves as an interpretative principle for determining the scope of constitutional rights; and, Third, it determines the proportionality of a statute limiting a constitutional right. Thus, if an enactment puts limitation on a constitutional right and such limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality.
106) As per Dworkin, there are two principles about the concept of human dignity. First principle regards an ‘intrinsic value’ of every person, namely, every person has a special objective value, which value is not only important to that person alone but success or failure of the lives of every person is important to all of us. It can also be described as self respect which represents the free will of the person, her capacity to think for herself and to control her own life. The second principle is that of ‘personal Writ Petition (Civil) No. 494 of 2012 & connected matters Page 191 of 567 responsibility’, which means every person has the responsibility for success in her own life and, therefore, she must use her discretion regarding the way of life that will be successful from her point of view.
107) Sum total of this exposition is well defined by Professor Baxi by explaining that as per the aforesaid view, dignity is to be treated as ‘empowerment’ which makes a triple demand in the name of ‘respect’ for human dignity, namely:
(i) respect for one's capacity as an agent to make one's own free choices;
(ii) respect for the choices so made; and
(iii) respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice.
108) In this entire formulation, ‘respect’ for an individual is the fulcrum, which is based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’.
109) The aforesaid discourse on the concept of human dignity is from an individual point of view. That is the emphasis of the petitioners as well. That would be one side of the coin. A very important Writ Petition (Civil) No. 494 of 2012 & connected matters Page 192 of 567 feature which the present case has brought into focus is another dimension of human dignity, namely, in the form of ‘common good’ or ‘public good’. Thus, our endeavour here is to give richer and more nuanced understanding to the concept of human dignity. Here, dignity is not limited to an individual and is to be seen in an individualistic way. A reflection on this facet of human dignity was stated in National Legal Services Authority (Transgenders’ case), which can be discerned from the following discussion:
“103. A corollary of this development is that while so long the negative language of Article 21 and use of the word “deprived” was supposed to impose upon the State the negative duty not to interfere with the life or liberty of an individual without the sanction of law, the width and amplitude of this provision has now imposed a positive obligation (Vincent Panikurlangara v. Union of India) upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity e.g.:
(i) Maintenance and improvement of public health (Vincent Panikurlangara v. Union of India).
(ii) Elimination of water and air pollution (M.C. Mehta v. Union of India).
(iii) Improvement of means of communication (State of H.P. v. Umed Ram Sharma).
(iv) Rehabilitation of bonded labourers (Bandhua Mukti Morcha v. Union of India).
(v) Providing human conditions in prisons (Sher Singh v. State of Punjab) and protective homes (Sheela Barse v. Union of India).Writ Petition (Civil) No. 494 of 2012 & connected matters Page 193 of 567
(vi) Providing hygienic condition in a slaughterhouse (Buffalo Traders Welfare Assn. v. Maneka Gandhi).
104. The common golden thread which passes through all these pronouncements is that Article 21 guarantees enjoyment of life by all citizens of this country with dignity, viewing this human right in terms of human development.
105. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognise the right of one and all amongst the citizens of these basic essentials designed to flower the citizen's personality to its fullest. The concept of equality helps the citizens in reaching their highest potential. Thus, the emphasis is on the development of an individual in all respects.”
110) Christopher McCrudden, an Oxford Academic, in his article ‘Human Dignity and Judicial Interpretation of Human Rights’ 47 published in the European Journal of International Law on September 01, 2008 traces the evolution of concept of human dignity. In substance, his analysis is that in the early stages of social evolution, human dignity was understood as a concept associated with ‘status’. Only those individuals were considered worthy of respect who enjoyed a certain status within the social construct. Though one finds statements about dignity of humans as human beings on account of the human being the highest creation of God and his possession of mind and the power of reason in the Oration of Marcus Tullius Cicero, a Roman Politician and Philosopher (63 BC), and in the works of Pico della 47 Published in the European Journal of International Law on September 01, 2008 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 194 of 567 Mirandola, a Reformation Humanist (1486) ‘On the dignity of man’, yet there existed human beings who were not considered as human beings. There were slaves who were treated at par with animals.
111) Kant expounded the theory that humans should be treated as an end in themselves and not merely as a means to an end with ability to choose their destiny. Emphasis was laid on the intrinsic worth of the human being. Based on this philosophy emerged the initial declaration of rights. Kant wrote thus:
“Humanity itself is a dignity; for a human being cannot be used merely as a means by any human being (...) but must always be used at the same time as an end. It is just in this that his dignity (personality) consists, by which he raises himself above all other beings in the world that are not human beings and yet can be used, and so overall things.”
112) Charles Bernard Renouvier, a French Philosopher, said:
“Republic is a State which best reconciles dignity of individual with dignity of everyone.”
113) Dignity extended to all citizens involves the idea of communitarism. A little earlier in 1798, Friedrich Schiller, a German poet of freedom and philosophy, brought out the connection between dignity and social condition in his work “Wurde des Menschen”. He said “(g)ive him food and shelter;Writ Petition (Civil) No. 494 of 2012 & connected matters Page 195 of 567
when you have covered his nakedness, dignity will follow by itself.” It was during the period that abolition of slavery became an important political agenda. Slavery was considered as an affront to human dignity.
114) The Universal Declaration of Human Rights (UDHR) recorded in the Preamble recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace. It included freedom from fear and want as amongst the highest aspirations of the common people. This is of course subject to resources of each State. But the realisation is contemplated through national effort and international cooperation. Evidently, the UDHR adopts a substantive or communitarian concept of human dignity. The realisation of intrinsic worth of every human being, as a member of society through national efforts as an indispensable condition has been recognised as an important human right. Truly speaking, this is directed towards the deprived, downtrodden and have nots.
115) We, therefore, have to keep in mind humanistic concept of human dignity which is to be accorded to a particular segment of the society and, in fact, a large segment. Their human dignity is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 196 of 567 based on the socio-economic rights that are read in to the fundamental rights, as already discussed above.
116) When we read socio-economic rights into human dignity, the community approach also assumes importance along with individualistic approach to human dignity. It has now been well recognised that at its core, human dignity contains three elements, namely, intrinsic value, autonomy and community value. These are known as core values of human dignity. These three elements can assist in structuring legal reasoning and justifying judicial choices in ‘hard cases’. It has to be borne in mind that human dignity is a constitutional principle, rather than free standing fundamental rights. Insofar as intrinsic value is concerned, here human dignity is linked to the nature of being. We may give brief description of these three contents of the idea of human dignity as below:
(I) Intrinsic Value:
The uniqueness of human kind is the product of a combination of inherent traits and features – including intelligence, sensibility, and the ability to communicate – that give humans a special status in the world, distinct from other species.48 The intrinsic value of all individuals results in two 48 See George Kateb, Human Dignity 5 (2011) (“[W]e can distinguish between the dignity of every Writ Petition (Civil) No. 494 of 2012 & connected matters Page 197 of 567 basic postulates: anti-utilitarian and anti-authoritarian. The former consists of the formulation of Kant’s categorical imperative that every individual is an end in him or herself, not a means for collective goals or the purposes of others. The latter is synthesized in the idea that the State exists for the individual, not the other way around. As for its legal implications, intrinsic value is the origin of a set of fundamental rights. The first of these rights is the right to life, a basic precondition for the enjoyment of any other right. A second right directly related to the intrinsic value of each and every individual is equality before and under the law. All individuals are of equal value and, therefore, deserve equal respect and concern. This means not being discriminated against due to race, colour, ethnic or national origin, sex, age or mental capacity (the right to non-discrimination), as well as respect for cultural, religious, or linguistic diversity (the right to recognition). Human dignity fulfills only part of the content of the idea of equality, and in many situations it may be acceptable to differentiate among people. In the contemporary world, this is particularly at issue in cases involving affirmative action and the rights of religious minorities. Intrinsic value also leads to the right to integrity, both physical and mental. The right to physical human individual and the dignity of the human species as a whole.”). Writ Petition (Civil) No. 494 of 2012 & connected matters Page 198 of 567 integrity includes the prohibition of torture, slave labour, and degrading treatment or punishment. Discussions on life imprisonment, interrogation techniques, and prison conditions take place within the scope of this right. The right to mental integrity comprises the right to personal honour and image and includes the right to privacy.
(II) Autonomy:
Autonomy is the ethical element of human dignity. It is the foundation of the free will of individuals, which entitles them to pursue the ideals of living well and having a good life in their own ways. The central notion is that of self-determination: An autonomous person establishes the rules that will govern his or her life. Kantian conception of autonomy is the will governed by the moral law (moral autonomy). Here, we are concerned with personal autonomy, which is value neutral and means the free exercise of the will according to one’s own values, interests, and desires. Autonomy requires the fulfillment of certain conditions, such as reason (the mental capacity to make informed decisions), independence (the absence of coercion, manipulation and severe want), and choice (the actual existence of alternatives). Autonomy, thus, is the ability to make personal decisions and choices in life based on one’s conception of the good, without Writ Petition (Civil) No. 494 of 2012 & connected matters Page 199 of 567 undue external influences. As for its legal implications, autonomy underlies a set of fundamental rights associated with democratic constitutionalism, including basic freedoms (private autonomy) and the right of political participation (public autonomy).
It would be pertinent to emphasise here that with the rise of the welfare state, many countries in the world (and that includes India) also consider a fundamental right to minimum living conditions (the existential minimum) in the balancing that results into effective autonomy. Thus, there are three facets of autonomy, namely: private autonomy, public autonomy and the existential minimum. Insofar as the last component is concerned, it is also referred to as social minimum or the basic right to the provision of adequate living conditions has its roots in right to equality as well. In fact, equality, in a substantive sense, and especially autonomy (both private and public), are dependent on the fact that individuals are “free from want,” meaning that their essential needs are satisfied. To be free, equal, and capable of exercising responsible citizenship, individuals must pass minimum thresholds of well-being, without which autonomy is a mere fiction. This requires access to some essential utilities, such as basic education and health care services, as well as some elementary necessities, such as food, water, clothing, and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 200 of 567 shelter. The existential minimum, therefore, is the core content of social and economic rights. This concept of minimum social right is protected by the Court, time and again.
(III) Community Value:
This element of human dignity as community value relates to the social dimension of dignity. The contours of human dignity are shaped by the relationship of the individual with others, as well as with the world around him. English poet John Donne expresses the same sentiments when he says ‘no man is an island, entire of itself’ 49. The individual, thus, lives within himself, within a community, and within a state. His personal autonomy is constrained by the values, rights, and morals of people who are just as free and equal as him, as well as by coercive regulation. Robert Post identified three distinct forms of social order: community (a “shared world of common faith and fate”), management (the instrumental organization of social life through law to achieve specific objectives), and democracy (an arrangement that embodies the purpose of individual and collective self-determination. These three forms of social order presuppose and depend on each other, but are also in constant tension.
49 See John Donne, XVII. Mediation, in Devotions upon Emergent Occasions 107, 108-09 (Uyniv. Of Mich. Press 1959) (1624) Writ Petition (Civil) No. 494 of 2012 & connected matters Page 201 of 567 Dignity as a community value, therefore, emphasises the role of the state and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of the good life. The relevant question here is in what circumstances and to what degree should these actions be regarded as legitimate in a constitutional democracy? The liberal predicament that the state must be neutral with regard to different conceptions of the good in a plural society is not incompatible, of course, with limitation resulting from the necessary coexistence of different views and potentially conflicting rights. Such interferences, however, must be justified on grounds of a legitimate idea of justice, an “overlapping consensus” 50 that can be shared by most individuals and groups. Whenever such tension arises, the task of balancing is to be achieved by the Courts.
We would like to highlight one more significant feature which the issues involved in the present case bring about. It is the balancing of two facets of dignity of the same individual. Whereas, on the one hand, right of personal autonomy is a part of dignity (and right to privacy), another part of dignity of the same individual is to lead a dignified life as well (which is again a 50 “Overlapping consensus” is a term coined by John Rawls that identifies basic ideas of justice that can be shared by supporters of different religious, political, and moral comprehensive doctrines.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 202 of 567facet of Article 21 of the Constitution). Therefore, in a scenario where the State is coming out with welfare schemes, which strive at giving dignified life in harmony with human dignity and in the process some aspect of autonomy is sacrificed, the balancing of the two becomes an important task which is to be achieved by the Courts. For, there cannot be undue intrusion into the autonomy on the pretext of conferment of economic benefits. Precisely, this very exercise of balancing is undertaken by the Court in resolving the complex issues raised in the petitions. Doctrine of Proportionality:
117) As noted above, whenever challenge is laid to an action of the State on the ground that it violates the right to privacy, the action of the State is to be tested on the following parameters:
(a) the action must be sanctioned by law; (b) the proposed action must be necessary in a democratic society for a legitimate aim; and (c) the extent of such interference must be proportionate to the need for such interference.
118) Doctrine of proportionality was explained by the Constitution Bench judgment of this Court in Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors. 51. In 51 (2016) 7 SCC 353 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 203 of 567 the first instance, therefore, it would be apt to reproduce the said discussion:
“60. ...Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as “doctrine of proportionality”. Jurisprudentially, “proportionality” can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012)], a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
61. Modern theory of constitutional rights draws a fundamental distinction between the scope of the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In Writ Petition (Civil) No. 494 of 2012 & connected matters Page 204 of 567 that sense, it defines the justification for limitations that can be imposed on such a right.
62. It is now almost accepted that there are no absolute constitutional rights [ Though, debate on this vexed issue still continues and some constitutional experts claim that there are certain rights, albeit very few, which can still be treated as “absolute”. Examples given are:(a) Right to human dignity which is inviolable,(b) Right not to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary.] and all such rights are related. As per the analysis of Aharon Barak [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012).] , two key elements in developing the modern constitutional theory of recognising positive constitutional rights along with its limitations are the notions of democracy and the rule of law. Thus, the requirement of proportional limitations of constitutional rights by a sub- constitutional law i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as the Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that is recognised in the Preamble of the Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is the cornerstone of Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon—of both the right and its limitation in the Constitution—exemplifies the inherent tension between democracy's two fundamental elements. On the one hand is the right's element, which constitutes a fundamental component of substantive democracy; on the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 205 of 567 other hand is the people element, limiting those very rights through their representatives.  How can this tension be resolved? The answer is that this tension is not resolved by eliminating the “losing” facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy's different facets is a “constructive tension”. It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balancing enables each facet to develop alongside the other facets, not in their place. This tension between the two fundamental aspects—rights on the one hand and its limitation on the other hand—is to be resolved by balancing the two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind the relative social values of each competitive aspects when considered in proper context.
63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of “proportionality”, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes [R. v. Oakes, (1986) 1 SCR 103 (Can SC)] , in the following words (at p. 138): ‘To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be “of” sufficient importance to warrant overriding a constitutional protected right or freedom … Second … the party invoking Section 1 must show that the means chosen are reasonable and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 206 of 567 demonstrably justified. This involves “a form of proportionality test…” Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.’
64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.
65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression “reasonable restriction” seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression “reasonable” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests Writ Petition (Civil) No. 494 of 2012 & connected matters Page 207 of 567 of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar). In M.R.F. Ltd. v. State of Kerala, this Court held that in examining the reasonableness of a statutory provision one has to keep in mind the following factors: (1) The directive principles of State policy. (2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Article 19(6). (5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions. (6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise.” (emphasis in original)
119) We may note at this stage that there is a growing awareness of the practical importance of the principle of proportionality for rights adjudication and it has sparked a wave of academic scholarship as well. The first integrates the doctrine of proportionality into a broader theoretical framework. It is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 208 of 567 propounded by Robert Alexy, premised on the theory of rights as principles and optimisation requirements52. For Alexy, all norms are either rules or principles. Constitutional rights are principles, which means that they must be realised to the greatest extent factually and legally possible. For Alexy, the principle of proportionality follows logically from the nature of constitutional rights as principles. On the other hand, Mattias Kumm presented his theory of rights adjudication as Socratic contestation, with proportionality principle at its centre. As per Kumm, proportionality is the doctrinal tool which allows Judges to assess the reasonableness or plausibility, of a policy and thus to determine whether it survives Socratic contestation 53. Recently, Kai Moller has proposed another theory, which is an autonomy- based theory of what he calls ‘the global model of constitutional rights’, at the core of which lies the obligation of the State to take the autonomy interests of every person adequately into account 54. In this process, his understanding of autonomy leads to one consequence, viz., there will often be conflicts of autonomy interests, which have to be resolved in line with each agent’s 52 Robert Alexy, A Theory of Constitutional Rights, (Oxford, Oxford University Press, 2002) 53 M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point and Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 141; M Kumm, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the point of Judicial Review’ (2007) 1 European Journal of Legal Studies.
54 K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012). Writ Petition (Civil) No. 494 of 2012 & connected matters Page 209 of 567 status as an equal. Here, the proportionality principle becomes the doctrinal tool which guides Judges through the process of resolving those conflicts.
One thing is clear from the above, i.e. jurisprudential explanations of proportionality principle. There may be some differences about the approach on the application of proportionality doctrine, it is certain that proportionality has become the lingua franca of judicial systems across borders, concerning the circumstances under which it is appropriate to limit fundamental rights.
120) The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 210 of 567
121) Many issues arise while undertaking the exercise of proportionality inquiry. At legitimate goal stage, question arises as to what does it mean to speak of the goal of a policy, and what does it mean to require a goal to be legitimate? 55 With regard to the suitability and necessity stages, some of the open issues are how to deal with empirical uncertainty: should this lead to wide- ranging deference to the elected branches? 56 At the balancing stage, we have to ask the question of what it means to say that a right is ‘balanced’ against a competing right or public interest. One remarkable feature of the German test is that it tends to push most of the important issues into the last stage, viz., the balancing stage. At the legitimate goal stage, any goal that is legitimate will be accepted. At the suitability stage, even a marginal contribution to the achievement of the goal will suffice. At the necessity stage, it is very rare for a policy to fail because less restrictive alternatives normally come with some disadvantage and cannot, therefore, be considered equally effective. Thus, the balancing stage dominates the legal analysis and is usually determinative of the outcome. 55 On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford, Hart Publishing, 2007) 131; Moller, the Global Model of Constitutional Rights (Oxford, Oxford University Press, 2012) ch
7. 56 As a proposal of how to deal with uncertainty, see Alexy’s ‘Second Law of Balancing’, which he proposes in the Postscript to A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002).
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 211 of 567
122) In contrast, Canadian Supreme Court has chartered different course while using proportionality test. R. v. Oakes57 (popularly known as Oakes test), has held that the objective must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’; there must be a rational connection between measure and objective; the means must ‘impair “as little as possible” the right or freedom in question’; and finally, ‘there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”’. Under this test, arguably more issues are addressed at the earlier stages. Instead of accepting any legitimate goal, Oakes requires a goal ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’. And the minimal impairment test is different from the German necessity test both in the way in which it is formulated (there is no requirement that the less restrictive measure be equally effective) and in the way it is applied in practice: the Canadian Supreme Court tends to resolve cases at that stage and not, as the German Federal Constitutional Court, at the balancing stage.
123) There is a great debate as to which out of the aforesaid two 57 (1986) 1 SCR 103 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 212 of 567 approaches is a better approach. Some jurists are of the view that the proper application of the German test leads to a practice of constitutional review with two connected problems: first, as pointed about above, usually almost all the moral work is done at the balancing stage, arguably rendering the earlier stages largely useless and throwing doubt on the truth of the popular argument that proportionality is a valuable doctrine partly because it structures the analysis of rights issues in a meaningful way. Secondly, the balancing act at the final stage is often carried out in an impressionistic fashion which seems to be largely unguided by principle and thus opens the door for subjective, arbitrary and unpredictable judgments encroaching on what ought to be the proper domain of the democratic legislature. These concerns can, however, be addressed. According to Bilchitz 58, first concern can be addressed by focusing on the necessity stage of the test. He takes issue with both the German test – according to which almost all policies are necessary because any alternative policy will usually have some disadvantage which means that it cannot be considered equally effective – and the Canadian minimal impairment test – which, taken seriously, narrows down the range of constitutionally acceptable policies far too much: ‘minimal 58 ‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing, Oxford and Portland, Oregon, 2016.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 213 of 567impairment’ can be read as insisting that only one measure could pass constitutional scrutiny, namely the measure which impairs the right least.59 So the alternatives seem to be either to construct the necessity (minimal impairment) test as filtering out almost nothing or to allow only one policy, thus rendering the elected branches partly superfluous. In order to preserve a meaningful but not unduly strict role for the necessity stage, Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable; and this judgment will go beyond the strict means- ends assessment favoured by Grimm and the German version of the proportionality test; it will also require a form of balancing to 59 On the various problems which the Canadian Supreme Court created for itself because of its early unfortunate statements on proportionality see S Choudhry, ‘So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1’ (2006) 34 Supreme Court Law Review 501.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 214 of 567be carried out at the necessity stage.
124) Insofar as second problem in German test is concerned, it can be taken care of by avoiding ‘ad-hoc balancing’ and instead proceeding on some ‘bright-line rules’ i.e. by doing the act of balancing on the basis of some established rule or by creating a sound rule. We may point out that whereas Chandrachud, J. has formulated the test of ‘legitimate state interest’, other two of the Judges, namely, Chelameswar and Sapre, JJ. have used the test of ‘compelling state interest’ and not ‘legitimate state interest’. On the other hand, S.K. Kaul, J. has held that the test to be applied is whether the law satisfies ‘public interest’. Nariman, J., on the other hand, pointed out that the Right to Information Act, 2005 has provided for personal information being disclosed to third parties subject to ‘larger public interest’ being satisfied. If this test is applied, the result is that one would be entitled to invoke ‘large public interest’ in lieu of ‘legitimate state aim’ or ‘legitimate state interest’, as a permissible restriction on a claim to privacy of an individual – a more lenient test. However, since judgment of Chandrachud, J. is on behalf of himself and three other Judges and S.K. Kaul, J. has also virtually adopted the same test, we can safely adopt the test of ‘legitimate state interest’ as the majority opinion, instead of applying the test of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 215 of 567 ‘compelling state interest’.
125) In Modern Dental College & Research Centre, four sub components or proportionality which need to be satisfied were taken note of. These are:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rationale connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the right holder (balancing stage).
126) This has been approved in K.S. Puttaswamy as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of course, while undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 216 of 567 tempered with more nuanced approach as suggested by Bilchitz.
This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted.
Issues:
127) After setting the tone of the case, it is now time to specify the precise issues which are involved that need to be decided in these matters:
(1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?
(a) What is the magnitude of protection that needs to be accorded to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such protection, including in respect of data minimisation, purpose limitation, time period for data retention and data protection and security?
(2) Whether the Aadhaar Act violates right to privacy and is unconstitutional on this ground?
{This issue is considered in the context of Sections 7 and 8 of the Aadhaar Act. Incidental issue of ‘Exclusion’ is also considered here} (3) Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 217 of 567(4) Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality:
(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(l) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI & VII – Regulations 27 to 32
(xiii) Section 29
(xiv) Section 33
(xv) Section 47 (xvi) Section 48 (xvii) Section 57 (xviii) Section 59 (5) Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust? (6) Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Constitution? (7) Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?
(8) Whether Rule 9(a)(17) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereunder, which mandate linking of Aadhaar with bank accounts, are unconstitutional? (9) Whether Circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional? Writ Petition (Civil) No. 494 of 2012 & connected matters Page 218 of 567 (10) Whether certain actions of the respondents are in contravention of the interim orders passed by the Court, if so, the effect thereof?
128) We now proceed to discuss the arguments on these grounds, as advanced by the petitioners, reply thereto and our conclusions thereupon.
Surveillance:
Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?
Education took us from thumb impression to signature Technology has taken us from signature to thumb impression, again
129) It may be remarked at the outset that the argument of surveillance draws sustenance, to a larger extent, from privacy rights as well. Therefore, the arguments which were addressed under this caption have traces of privacy also. However, these are discussed in the context of surveillance state argument.
130) It was submitted that Aadhaar project creates the architecture of a ‘cradle to grave’ surveillance state and society. This means that it enables the State to profile citizens, track their movements, assess their habits and silently influence their behaviour throughout their lives. Over time, the profiling enables the State to stifle dissent and influence political decision making. The Writ Petition (Civil) No. 494 of 2012 & connected matters Page 219 of 567 architecture of the project comprises a Central Identities Data Repository which stores and maintains authentication transaction data. The authentication record comprises the time of authentication and the identity of the requesting entity. The UIDAI and the Authentication Service Agency (ASA) is permitted to store this authentication record for 2 + 5 years (as per Regulations 20 and 26/27 of the Authentication Regulations). Based on this architecture it is possible for the State to track down the location of the person seeking authentication. Since the requesting entity is also identified, the activity that the citizen is engaging in is also known. (Sections 2(d), 2(h), 8, 10, 32 of the Act read with Regulations 18, 20, 26 of the Aadhaar (Authentication) Regulation, 2016).
131) According to the petitioners, the Authority has the following information (according to the document on technical specification of Aadhaar registered devices published by the Authority in February 2017) – Aadhaar number, name of Aadhaar holder, whether authentication failed or was successful, reason for such failure, requesting entities’ Internet Protocol (IP) address, date and time of authentication, device ID and its unique ID of authentication device which can be used to locate the individual. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 220 of 567
132) Authentication of Aadhaar number enables tracking, tagging and profiling of individuals as the IP Address of the authentication device gives an idea of its geographical location (determinable within the range of 2 kilometres), country, city, region, pin code/zip code). Mr. Divan submits that an individual is on an electronic leash, tethered to a central data repository that has the architecture to track all activities of an individual. The Aadhaar Act creates a database of all Indian residents and citizens with their core biometric information, demographic information and meta data. In light of the enormous potential of information, concentration of information in a single entity, i.e., the Authority, enabling easier access to aggregated information puts the State in a position to wield enormous power. Given that with advancements in technology, such information can affect every aspect of an individual’s personal, professional, religious and social life, such power is a threat to individual freedoms guaranteed under Articles 19(1)(a) to 19(1)(g) of the Constitution and other fundamental rights guaranteed under Article 21 (Right to informational privacy) and Article 25 of the Constitution. It was submitted that the Aadhaar Act treats the entire populace of the country as potential criminals ignoring the necessity to balance the State’s mandate of protection against crime with the right to Writ Petition (Civil) No. 494 of 2012 & connected matters Page 221 of 567 personal bodily integrity which is envisaged under Article 21 read with Article 20(3) of the Constitution. It does not require the collection of data to have a nexus with a crime. Mr. Sibal submits that in the decision in Selvi & Ors. v. State of Karnataka60, this Court has held:
“The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of “personal liberty” under Article 21. Hence, our understanding of the “right to privacy” should account for its intersection with Article 20(3)”
133) It is argued that the Aadhaar Act, therefore, violates the right to protection from self-incrimination, and the right to privacy and personal dignity/bodily integrity under Article 20(3) and Article 21.
134) It was argued that the Constitution of India repudiates mass surveillance as enabled by Aadhaar and the project ought to be struck down on this ground alone. There is no question of balancing or justification in case of a surveillance architecture.
135) Passages from various judgments were quoted in an attempt to establish that surveillance causes interference with right to privacy, life and liberty. From Kharak Singh v. State of U.P. 61, dissenting opinion of Subba Rao, J. (which has been upheld in K.S. Puttaswamy) was relied upon. With respect to how 60 (2010) 7 SCC 263 61 (1964) 1 SCR 332 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 222 of 567 surveillance constricts right to life and liberty, His Lordship held that:
“Now let us consider the scope of Article 21. The expression "life" used in that Article cannot be confined only to the taking away of life, i.e., causing death. In Munn v. Illinois (1), Field, J., defined "life" in the following words:
“Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The expression "'liberty" is given a very wide meaning in America. It takes in all the freedoms. In Bolling v. Sharpe (2), the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint and that liberty under law extended to the full range of conduct which the individual was free to pursue. But this absolute right to liberty was regulated to protect other social interests by the State exercising its powers such as police power, the power of eminent domain, the power of taxation etc. The proper exercise of the power which is called the due process of law is controlled by the Supreme Court of America. In India the word "liberty" has been qualified by the word "Personal", indicating thereby that it is confined only to the liberty of the person. The other aspects of the liberty have been provided for in other Articles of the Constitution xx xx xx 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.
Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Writ Petition (Civil) No. 494 of 2012 & connected matters Page 223 of 567 Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as 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.
xx xx xx The freedom of movement in clause (d) of Article 19 therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. ”
136) In the case of District Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Ors.62, this Court struck down provisions of a legislation on grounds that it was too intrusive of citizens’ right to privacy. The case involved an evaluation of the Andhra Pradesh Stamp Act which authorized the collector to delegate “any person” to enter any premises in order to search for and 62 (2005) 1 SCC 496 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 224 of 567 impound any document that was found to be improperly stamped.
After an exhaustive analysis of privacy laws across the world, and in India, the Court held that in the absence of any safeguards as to probable or reasonable cause or reasonable basis, this provision was violative of the constitutionally guaranteed right to privacy “both of the house and of the person”. The Court held:
“The A.P. amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents 'tending' to or leading to the various facts stated in sec. 73 are in existence and sec. 73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopal's case wherein the learned judges have held that the right to personal liberty also means the life free from encroachments unsustainable in law and such right flowing from Article 21 of the Constitution.”
137) Reference was made to the U.S Supreme Court case of U.S. v.
Jones63 where the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes an unlawful search under the Fourth Amendment. Sotomayor, J. in her concurring judgment observed that Fourth Amendment search and seizure is not only concerned with physical trespassory intrusions on property but also non-physical violation of privacy 63 132 S.Ct. 945 (2012) Writ Petition (Civil) No. 494 of 2012 & connected matters Page 225 of 567 that society recognizes as reasonable. She notes that GPS data can reveal an entire profile of a person simply by knowing the places she visits and that the Government can mine this data in the future:
“With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory or owner-installed vehicle tracking devises or GPS enabled smart-phones … In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the trespassory test may provide little guidance.
xx xx xx GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations … disclosed GPS data will be trips to the psychiatrist, plastic surgeon, abortion clinic, AIDS treatment centre, strip club, criminal defence attorney … Government can store such records and efficiently mine them for information years into the future… awareness that the government may be watching chills associational and expressive freedom … it may alter the relationship between citizen and government in a way that is inimical to democratic society.
xx xx xx I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection … (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”) ...
(“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”).” Writ Petition (Civil) No. 494 of 2012 & connected matters Page 226 of 567
138) The judgment of the ECtHR in Zakharov v. Russia64 was also referred to where the ECtHR examined an application claiming violation of Article 8 of the Convention (right to respect for private and family life) alleging that the mobile operators had permitted unrestricted interception of all telephone communications by the security services without prior judicial authorisation, under the prevailing national law. The Court observed that:
“Mr Zakharov was entitled to claim to be a victim of a violation of the European Convention, even though he was unable to allege that he had been the subject of a concrete measure of surveillance. Given the secret nature of the surveillance measures provided for by the legislation, their broad scope (affecting all users of mobile telephone communications) and the lack of effective means to challenge them at national level… Russian law did not meet the “quality of law” requirement and was incapable of keeping the interception of communications to what was “necessary in a democratic society”. There had accordingly been a violation of Article 8 of the Convention… existence of arbitrary and abusive surveillance practices, which appear to be due to inadequate safeguards provided by law”.
139) The Court held that any interference with the right to privacy under Article 8 can only be justified under Article 8(2) if it is in accordance with law, pursues one or more legitimate aims and is necessary in a democratic society to achieve such aim. “In accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the 64 (2015) Application No. 47143/2006 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 227 of 567 rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must, thus, meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects. With respect to foreseeability of surveillance, the court held:
“Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures.
xx xx xx Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference.”
140) The Court observed that the following minimum safeguards that should be set out in law in order to avoid abuses of power for Writ Petition (Civil) No. 494 of 2012 & connected matters Page 228 of 567 surveillance are: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed.
141) For establishing if the measures were “necessary in a democratic society” in pursuit of a legitimate aim, the Court observed: