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The prolong, unending, anxious wait and huge suspense over what the judgment of Supreme Court will deliver is finally over. The curtains have finally been opened! To start with, the Supreme Court on August 24 has finally declared forthright that the right to privacy a fundamental right and this has brought smiles on the face of billions of people all over the country. Sanjay Hegde who is a senior advocate in the Supreme Court and Pranjal Kishore who is a lawyer in Delhi very rightly begin their enlightening editorial titled “In verdict, freedom’s 7 takeaways” in The Indian Express dated August 28, 2017 that, “A majority of Indians, particularly younger citizens, had taken the right to privacy for granted. The government’s extreme stand, that there was no fundamental right of privacy, compelled the Supreme Court to clarify years of slightly uncertain case-law on this point. The decision in Justice KS Puttaswamy (retd) and Anr versus Union of India and Anr has enormous implications. The court has, with broad brushstrokes, enhanced and highlighted the right. Crucially, it has indicated that the contours of privacy mentioned in the judgment are not limitations to the right but foundations over which it will develop over time.”  
Supreme Court Declares Right To Privacy A Fundamental Right

                                  Faizan Mustafa who is learned Vice-Chancellor, NALSAR University of Law, Hyderabad also writes in this same newspaper mentioned above in the editorial titled “Privacy and more: what SC said” that, “There were 22 petitioners in all; the lead petitioner who challenged Aadhaar is a 92-year-old former judge of Karnataka High Court. The Supreme Court had talked about privacy in as many as 30 previous judgments – but the Government of India asserted in this case that privacy is not a fundamental right; this, the government said, had been decided in two judgments by an eight-judge bench and a six-judge bench. Accordingly, the matter was first referred to a five-judge bench and then, to this nine-judge bench. Thursday’s privacy judgment will also be remembered for celebrating dissenting opinions. The dissenting opinions of Justice S Fazal Ali in Gopalan (1950), Justice K Subbarao in Kharak Singh (1963) and Justice HR Khanna in the infamous ADM Jabalpur case (1976) were acknowledged and appreciated. In a historic 9-0 verdict, the Supreme Court establishes a new bar for civil liberties, individual rights and the freedom of choice in India; stresses Constitution’s silences are important, too.”
                                         There is no definite legal definition of privacy. It can be interpreted to mean various things like bodily integrity, protection from state surveillance, personal autonomy, dignity, confidentiality etc. Briefly stated, it has to be determined separately from case to case. It is not explicitly mentioned in Constitution but deemed to be included in Article 21. Privacy is, as Brandeis and Warren rightly termed in 1894 as “the right most valued by civilized men”, “the right to be left alone”. But in this age of Digital and Internet we see our privacy being invaded repeatedly!
                                 Now coming to international arena, Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which India signed and ratified on April 10, 1979 in totality legally protects persons against “arbitrary interference with one’s privacy, family, home, correspondence, honour and reputation”. Article 12 of Universal Declaration of Human Rights to which India is a signatory minces no words in stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.”  
                                          Also, Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home and communications. Article 8 specifically stipulates protection of personal data and its collection for a specified legitimate purpose. The European Union also has the rather unconventional ‘right to be forgotten’ which confers an individual the liberty to remove his/her digital footprints. In the USA, neither abortion nor same sex rights are adjudicated on the ground of privacy. All decisions in the USA rely on liberty rather than privacy!
                                         However, on a different note, an eminent Supreme Court lawyer Anand Grover rightly asserts that, “I cannot be asked to give up one right to avail of another. Don’t just look at US law. It’s quite restrictive. Look at the ECHR, Latin American law, the Canadian charter. Canada has read in privacy into liberty and security. Privacy applies equally to poor and rich.” Gopal Subramanium too rightly pointed out that, “You cannot divorce liberty from dignity. Bhagwati J helped South African Constitution. Their article 14 guarantees privacy. Their Constitutional Courts says that privacy, liberty, dignity and freedom are all intertwined. The selfhood of the person is at the core of this case.”
                                 To put it succinctly, Milind Deora rightly points out in his enlightening article titled “Why We Need Curtains” in ‘The Economic Times’ dated July 24, 2017 that, “Canada has a dedicated Privacy Commissioner to ensure oversight and implementation of the Privacy Act and the Personal Information Protection and Electronic Documents Act. The lack of such regulations in India is essentially akin to inviting the State, or any private player, into our homes and lives, granting them access to our private conversations, chats, emails, phone calls, gym schedules and dinner plans. In the absence of a privacy law regulating the collection, storage and use of private information, we are essentially surrendering control of our data, completely vulnerable to misuse and exploitation without connotations of illegality or mechanisms for redressal. A larger, more dangerous threat looms in potential attacks on sovereign data, the consequences of which could range from economic loss to a paralysis of essential government services such as electricity and transportation.”
                                            It may be recalled here that an eight-Judge Bench comprising the then Chief Justice Mehar Chand Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, TL Venkatarama Aiyyar, BK Mukherjea, Sundhi Ranjan Das and Vivian Bose in MP Sharma & Others v Satish Chandra, District Magistrate, Delhi & Others [1954 SCR 1077] dated March 15, 1954, it was held that, “A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.” Privacy was not recognized as a fundamental right.
                            Similarly in Kharak Singh v The State of UP & Others [1964 1 SCR 332] dated December 18, 1962, the writ petition was adjudicated by a six-Judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR Mudholkar , the Bench struck down Clause (b) – domiciliary visits at night – of Regulation 236, but upheld the rest. The Bench also held that, “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights).”
                                         In this case the petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.
                                            In his writ petition, Kharak Singh had challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials thereunder on the ground that they violated his fundamental rights under Article 19(1)(d) – right to freedom of movement – and Article 21 – protection of life and personal liberty. In this case also privacy was not declared to be a fundamental right.   
                                                            But in a later case a three Judge Bench verdict in 1975 in Gobind v State of Madhya Pradesh [(1975) 2 SCC 148] it was held that right to privacy was a fundamental right and this was followed by Supreme Court Benches over the last 40 years! In PUCL v Union of India, [(1997) 1 SCC 301], it was held by Apex Court that Courts can proceed on a case by case basis to determine which rights come under the aspects of privacy and which don’t. It was also held that, “….We have therefore no hesitation in holding that right to privacy is a part of the right to life and personal liberty and once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law.”
                                       Also, it must be mentioned here that Justice J Chelameswar of Supreme Court said: “In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy…There is a battery of judgments saying privacy is a fundamental right. We have to give serious thought to this question.”                                      Truth be told, citizens will now have the legitimate right to approach higher judiciary whenever they want for violation of their privacy by State, non-State entities and individuals after a nine-Judge Bench of the Supreme Court by a unanimous verdict held privacy to be a fundamental right, protected under Article 21 (right to life and liberty) of the Constitution. Needless to say, by this landmark verdict, the Supreme Court has overruled two of its previous decisions, one by an eight-Judge Bench in MP Sharma v Satish Chandra 1954 SCR 1077 and another by a six-Judge Bench in Kharak Singh v  The State of UP & Others 1964 1 SCR 332. The two judgments had ruled explicitly that right to privacy was not a fundamental right protected by the Constitution.   
                                           It must be recalled here that even though the two judgments of MP Sharma case and Kharak Singh case had declared that right to privacy was protected by Article 21, a nine-Judge Bench ruling was an imperative in order to overrule the eight-Judge Bench ruling operating in this field. It also must be recalled here that the Centre had exclusively relied on MP Sharma and Kharak Singh case to deny the existence of right to privacy as a fundamental right to pursue the Aadhaar scheme. This alone explains why the former Attorney General Mukul Rohatgi very strongly feels that Centre has lost this case!
                            Before discussing the judgment threadbare, it is imperative to know the privacy laws of some major countries. Let us discuss them one by one. They are as follows: -
1. In USA privacy is not explicitly cited as a right in the US Constitution but it is indirectly safeguarded through the Fourth Amendment against unwarranted search or seizure, and Fourteenth Amendment on due process and so on. Privacy protected by state and sector-specific laws for health information, financial information, children-specific data etc. The Privacy Act of 1974 spells out terms for how records of personal data can be used by federal agencies. US citizens are entitled to take recourse under tort law and can claim damages if their privacy is invaded through electronic or physical snooping into private spaces, public disclosure of private information or appropriation of one’s name or likeness.
2. In UK, privacy law has evolved over the years, but in indirect and piecemeal manner. There is a law of trespass on one’s bodily or physical property. Breach of confidence principles have been used to protect commercial information and, to a lesser extent, personal information. UK’s data protection law requires fair processing of personal data and transparency about the purpose of collection along with informed consent. After Brexit, data protection laws are all set to be overhauled again exhaustively.
3.  Canadian privacy law has evolved over the years from common law, federal and provincial-level statutes, and the Canadian Charter of rights and Freedoms. Currently it has two federal privacy laws, one for the state’s handling of personal information and another for the private sector. Also, we see how provinces have their own legislation, and sectors like bank and credit reporting agencies are governed by their own specific laws.
4. Iceland like Switzerland has a secure strongbox for information guarded by the tightest privacy laws in the world. It has adopted the EU’s privacy regulations. It also hosts data centres to store the world’s information safely and several encrypted companies operate out of Iceland.
5. In Spain privacy is both a fundamental right under the European Union charter and a strong cultural norm. Citizens have a great degree of control over their own data and can ask for irrelevant information to be removed. There is a formal ‘right to be forgotten’. Businesses have to inform regulators within three days in case of a data breach. Personal data protection is a constitutional right and anyone seeking to collect such data must provide users with “fair processing information”, including their own identity, address, the reason for seeking the data, legal right of the user, whether participation is voluntary or mandatory and the consequences of not parting with the data. 
6. Singapore passed a data privacy law in 2016 that protects all the personal data ten years after a person’s death.
7.  The 27-nation EU directive, passed in 1995, restricts the use, sharing, storing and collecting of personal data.
                             It would also be useful to know the chronology of events connected with this landmark judgment. This will give a fair idea as to who the case progressed right from the inception. They are as follows: -
July 21, 2015: A Bench of Justices J Chelameswar, SA Bobde and C Nagappan on a batch of petitions challenging the Aadhaar scheme as a violation of privacy clarifies that demands made by officials for Aadhaar card are in clear violation of the Supreme Court’s order of September 23, 2013 that Aadhaar is voluntary.
July 22: Centre argues that the Constitution makers did not intend to make right to privacy a fundamental right. There is no fundamental right (to privacy), so these petitions (under Article 32) should be dismissed. Right to privacy is not absolute.
August 6: The three-Judge Bench reserves its order on the petition challenging the Aadhaar card project. Centre seeks a larger Bench to answer questions of law, primarily whether privacy is a fundamental right.
August 11: Three-Judge Bench holds that “balance of interest” is better served if Aadhaar is made neither mandatory nor a condition for accessing benefits one is already entitled to. The Court clarified that this interim order will be in vogue till a five-Judge Bench decides on the larger Constitutional issue whether the Aadhaar scheme and its biometric mode of registration, amounts to an intrusion into the privacy of a citizen.
October 7: The Supreme Court refers to a Constitution Bench the question whether a person can voluntarily shed his right to privacy by enrolling for Aadhaar to easily access government welfare services. The Bench does not modify its August 11, 2015 order restricting the use of Aadhaar cards to only the public distribution system and LPG connections. Instead, it left the order open for the Constitution Bench to consider and take a call.
October 15: The Supreme Court extends the voluntary use of Aadhaar card to MGNREGA, pension schemes, EPFO and the Jan Dhan Yojana. The five-Judge Constitution Bench, led by HL Dattu, says the purely voluntary nature of the use of Aadhaar card to access public services will continue till the court takes a final decision.
April 25, 2016: The passage of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, on March 11, 2016 comes under the scanner of Supreme Court after Parliamentarian Jairam Ramesh challenges its introduction as a Money Bill as “malafide and brazen”.
March 27, 2017: CJI JS Khehar orally observes that there is no fault with the government’s choice to make Aadhaar mandatory for “non-welfare activities like opening a bank account or filing income tax returns or applying for a mobile connection.
April 27: Senior advocate Shyam Divan submits before a Supreme Court Bench that a newly inserted Section 139AA in the Income Tax Act, which mandates the linking of Aadhaar with PAN, is a “Faustian bargain”. Centre counters it by stating that taking fingerprints iris impressions for Aadhaar is not an invasion of a citizen’s body as the right of a person to his own body is not absolute.
May 19: Supreme Court agrees to hear petition filed by several persons, including former NCPCR chairperson and Magsaysay winner Shanta Sinha, against 17 government notifications allegedly making Aadhaar mandatory for accessing welfare activities after June 30, 2017.
June 9: Supreme Court upholds Section 139AA of the Income Tax Act.
July 7, 2017: Three-Judge Bench says issues arising out of Aadhaar should finally be decided by larger Bench and CJI would take a call on need for setting up a Constitution Bench.
Matter mentioned before CJI who sets up a five-Judge Constitution Bench to hear the matter.
July 18: Five-Judge Constitution Bench decides to set up a nine-Judge Bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.
July 19: Apex Court says right to privacy can’t be absolute, may be regulated.
Centre tells Apex Court that right to privacy is not a fundamental right.
The Unique Identification Authority of India informs that the Centre has constituted a Committee of experts led by former Supreme Court Judge – Justice BN Srikrishna to identify “key data protection issues” and suggest a draft data protection Bill.
July 26: Karnataka, West Bengal, Punjab and Puducherry, the four non-BJP ruled states move Supreme Court in favour of right to privacy.
Centre tells Supreme Court that privacy can be fundamental right with some riders.
July 27: Maharashtra government tells Apex Court that privacy is not a ‘standalone’ right, but it is rather a concept.
August 1: Supreme Court says that there has to be ‘overarching’ guidelines to protect an individual’s private information in public domain.
August 2: Supreme Court says protection of the concept of privacy in the technological era was a “losing battle”, reserves verdict.
August 24: Supreme Court declares right to privacy as fundamental right that is intrinsic to life and liberty under Part III of the Constitution.
               
                                   Let me bring out here that the nine-judge Bench comprising Chief Justice of India JS Khehar, Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer, by way of six separate decisions arrived at the same conclusion. In a session that lasted barely five minutes, Chief Justice JS Khehar read out the unanimous operative part of the verdict of the nine-Judge Bench: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”  There can be no denying it.
                                            Let me also bring out here that the huge ramifications of the landmark judgment which one Judge said “governs the lives of 125 crore citizens of this country” were woven into the landmark judgment which ran into 574 pages! Justice Rohinton Nariman who too was among the 9-Judges who delivered  this landmark verdict said that, “The judgment must be interpreted to respond to the changing needs of society at different points in time.” The top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment would have to withstand the touchstone of permissible restrictions.
                                            In other words, the Bench also said this right will not be ‘absolute’ as it can be curtailed by the State only by a law which is fair, just and reasonable. With the right to privacy issue being finally settled, a five-Judge Bench of the Supreme Court that has been hearing the arguments since 2015 will now test the validity of Aadhaar as per the original petition because the court did not directly address the Aadhaar issue. The Government argued that the Constitution does not guarantee individual privacy. The petitioners argued that enforcing the use of Aadhaar is infringement of privacy.  
                                          As it turned out, while Justice Chandrachud recognised privacy to operate in intimate, private and public zones that an individual needs to develop his/her personality in order to make free choices and decisions in life, Justice Nariman described privacy to exist in Indian context in three aspects, namely privacy of person (relating to body and free movement), informational privacy (relating to mind, thoughts personal to an individual) and privacy of choice (autonomy of making personal choices). The Apex Court rejected the NDA government’s vehement contention that there was no general or fundamental right to privacy under the Constitution. Justice Rohinton F Nariman while negating privacy as an elitist construct said that, “A large number of poor people that the Centre (A-G KK Venugopal) talks about are persons who in today’s completely different and changed world have cell phone and would come forward to press the fundamental right of privacy, both against the Government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context.”
                                       To be sure, the lead judgment penned by Justice DY Chandrachud for himself, the CJI JS Khehar, Justices RK Agrawal and SA Nazeer, however, asked the government to examine and put in place a “robust regime” for data protection in the modern era. The top court has certainly given a small ray of hope to the government whose Aadhaar scheme has come under intense scrutiny over privacy infringements. It said that, “We commend to the Union Government the need to examine and put into place a robust regime for data protection.”
                                        To put things in perspective, the landmark judgment said that privacy included at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. It was also made clear in the judgment that, “Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life.” It said personal choices governing a way of life are intrinsic to privacy. It also underscored that, “Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”  
                                 As things stand, it is being widely anticipated that the landmark judgment by the Supreme Court declaring right to privacy as a fundamental right might open the floodgates for a litigation explosion. Under the new regime even if true ‘salacious’ details of celebrities and other eminent personalities are published, they will now have the right to sue publications and individuals for violating their right to privacy. By linking individual dignity with privacy, the Apex Court made it clear that, “Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life.”   
                                 Going forward, Justice DY Chandrachud who made this point, explained that privacy attaches to the individual irrespective of whether he is in his intimate, private or public domain. His judgment was supported by CJI JS Khehar, Justices RK Agrawal and S Abdul Nazeer. Justice SK Kaul who supported Justice Chandrachud said, “There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.” He accepted this may give rise to a flurry of litigations but added that this could never be a cause for not recognising privacy as a fundamental right. Absolutely right!
                                Elaborating further, Justice SA Bobde, in his separate decision said, “The scope and ambit of a constitutional protection of privacy can only be revealed to us on a case by case basis.” Justice J Chelameswar, in his concurring but separate opinion, laid down possible areas that could give rise to legal proceedings over privacy rights. These include telephone tappings, internet hacking by State, hacking of personal data, and collection of biometric data by Union of India under the Aadhaar scheme.
                                  Justice Sanjay Kishan Kaul in his 47-page judgment further pointed out that this judgment will give rise to conflict between fundamental rights of different section of the society. He said an effort must be made by courts to balance right to privacy with freedom of the Press and media, both being fundamental to a democratic society. Privacy at home, according to Justice Kaul will be another aspect that will bring conflict relating to a personal choice about family, marriage, procreation, sexual orientation, and the courts will have to consider them. He acknowledged the new threats from the intrusive state in an age of digital footprints and quoted from George Orwell’s 1984 that, “The big brother is very much here.”
                                       He further said that, “The right to privacy was very much part of the original intent of the framers of the Constitution, and privacy is key to freedom of thought and the right to think.” He also noted that, “Privacy is nothing but a form of dignity, which itself is a subset of liberty. Thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order.”
                                      He also said that Facebook, Uber need to be regulated to protect privacy. He said non-state actors needed to be regulated to protect the rights of citizens in the digital age and they should not be allowed to exercise control over people like “big brother”. Justice Kaul also pointed out that, “We are in an information age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy. The right to privacy is claimed qua the state and non-state actors. Recognition and enforcement of claims qua non-state actors may require legislative intervention by the state. Digital footprints and extensive data can be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions and, hence, is valuable information. This is the age of big data… A large number of people would like to keep such search history private, but it rarely remains private, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising.”
                                     Justice Kaul further goes on to say that, “Uber knows our whereabouts and the places we frequent. Facebook at the least, knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to. Social network providers, search engines, email service providers, messaging applications are all further examples of non-state actors that have extensive knowledge of our movements, financial transactions, conversations and shopping habits. As we move towards becoming a digital economy and increase our reliance on internet based services, we are creating deeper and deeper digital footprints.”  
                               Be it noted, Justice Chandrachud raised the other issue of balancing data regulation on internet with individual privacy. He said that, “Privacy concerns are seriously an issue in the age of information. Modern day apps and online transactions profile customer preferences, without users consenting to the same.” He further added: “We commend to the Union Government the need to examine and put in place a robust regime for data protection. The creation of such a regime requires careful and sensitive balance between individual interest and legitimate concern of the State.” He also said that, “Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights (like privacy) are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions, which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.”
                                    It is imperative that we now discuss in brief those decisions of more than four decades to which right to privacy has been traced. They are as follows: -
1. Kharak Singh v State of UP & Others (1964) – SURVEILLANCE INTRUDES INTO PRIVACY
Among the most cited cases in India when it comes to privacy. Here, a majority of a six Judge Bench of Supreme Court held that unlawful intrusion into the home violates personal liberty.
2.  R Rajagopal v State of Tamil Nadu (1994) -  
RIGHT TO BE LET ALONE
The Supreme Court observed that, “…in recent times, right to privacy has acquired Constitutional status and is implicit in the right to life and liberty guaranteed to the citizens by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.”
3. PUCL v Union of India (1997) –
TELEPHONE TAPPING INVADES PRIVACY
A Division Bench of Supreme Court held that a telephone conversation is an exercise in freedom of expression, and that telephone tapping is an invasion of privacy.
4.  Mr X v Hospital Z (1998) –
PRIVACY ISN’T ABSOLUTE
The case concerned revealing the HIV status of a patient by a doctor. A Division Bench of Supreme Court held the right to life and personal liberty includes the right to privacy but the right is not absolute and may be lawfully restricted. A doctor may disclose a patient’s HIV status to their partner.           
5. Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat (2008) –
CHOICE of FOOD PERSONAL
A Division Bench of Supreme Court upheld the closure of slaughterhouses in Ahmedabad during the Jain Paryushan festival. It also observed that what one eats is part of one’s right to privacy.
6. Jamiruddin Ahmed v State of West Bengal (2009) – RAID WITHOUT REASON NOT OKAY
A Division Bench of Supreme Court held that search/seizure without recording valid reasons violates the right to privacy.
7. Ram Jethmalani & Others v Union of India (2011) – CAN’T REVEAL BANK DETAILS WITHOUT VALID GROUNDS
Popularly known as the “Black Money Case’. The Supreme Court here held that revealing an individual’s bank account details without establishing grounds to accuse them of wrongdoing violates their right to privacy.
8. In The Ramlila Maidan Case (2012) –
RIGHT TO SLEEP IS PART OF RIGHT TO PRIVACY
The Supreme Court took suo motu cognizance of the massive unwarranted crackdown on peaceful, sleeping anti-corruption protesters camping at Ramlila Maidan led by Baba Ramdev. While identifying right to sleep as an aspect of the right to dignity and privacy, the Apex Court refused to permit “illegitimate intrusion into a person’s privacy as right to privacy is implicit in the right to life and liberty”.      
                                   In hindsight, while countering the Government’s claim to protect right to privacy by way of a law than elevating it to the status of a fundamental right, the Bench spoke about its apprehension of a Government enjoying majority to amend or curtail this right. In his separate decision Justice Nariman said, “Statutory law can be made or unmade by a simple Parliamentary majority. Fundamental rights are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the Governments they may elect.”
                             Let me hasten to add here that all the nine Judges who delivered this landmark judgment agreed that though the Constitution makers did not consider including privacy as a fundamental right, it is an “inalienable” human right. Without recognizing privacy as a fundamental right, they said, the goals of liberty and dignity contained in our Preamble can’t be fully enjoyed. Justice Chandrachud who wrote for himself and the CJI, Justices Agrawal and Nazeer, recalled the Emergency days and said, “India’s brush with a regime of suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant.” He said that by making privacy a fundamental right, it will become inviolable and make it tough for any law or executive decision that seeks to infringe upon this right to stand the scrutiny from Courts.”
                                      Interestingly enough, when a nine-Judge Supreme Court Bench overruled on August 24, 2017 the 1976 Emergency-era judgment upholding the government’s decision to suspend right to life, the main author Justice DY Chandrachud, very courageously took the unpalatable decision with a steely resolve to overrule his own father, Justice YV Chandrachud who has the unique distinction of being the Chief Justice of India with a maximum tenure of nearly seven and a half years and who was part of the majority judgment which had endorsed the Indira Gandhi government’s decision to suspend right to life during Emergency. The majority judgment of the 1976 verdict was written by Justice MH Beg with whom then CJI AN Ray and Justices YV Chandrachud and PN Bhagwati had agreed. No doubt, Justice HR Khanna had put his name in golden letters in the annals of judicial history by rendering a strong dissent emphasizing the inviolability of right to life.
                                 Calling a spade a spade, Justice DY Chandrachud declared, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed… ADM Jabalpur must be and is accordingly overruled.” He further added that, “Justice Khanna was clearly right in holding that the recognition of right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution, the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.”
                             Not stopping here, Justice Chandrachud further added that, “A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”
                            On the quality and value of ADM Jabalpur judgment, Justice Chandrachud pulled back no punches in holding unequivocally that, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” It takes great guts and courage to expressly overrule what one’s own father says and we all must imbibe some lessons from him (Justice DY Chandrachud) to never dither in disagreeing with our own father also when we think strongly that he is wrong! He certainly deserves all the encomiums and laurels!
                                  Faizan Mustafa who is Vice-Chancellor NALSAR University of Law rightly points out that, “The judgment of Justice Chandrachud has taken individual rights to a new height. The right to privacy recognises the autonomy of the individual – as privacy is intrinsic in freedom and liberty, he has held. Privacy is the ultimate expression of the sanctity of the individual. Justice Chandrachud has overruled as “seriously flawed” the judgment in ADM Jabalpur, where a four-judge majority that included his father, Justice YV Chadrachud, held that during an Emergency, when the right to life is under suspension, citizens have no remedy against illegal detention. The rights to life and personal liberty are inalienable to human existence, and existed even before Constitution, he held – by this recognition, the Constitution does not become the sole repository of the right to liberty. This right, according to Justice Chandrachud, is a pre-Constitution right that continued as valid law under Article 372. This is indeed a unique formulation.”
                            Justice Chandrachud rightly held that dignity is the core that unites the fundamental rights – because fundamental rights try to achieve for each individual the dignity of existence. He also held that no citizen has the right to waive fundamental rights – the direct implication of this being that the sharing of information does not in any way implies that the citizen has in any way waived his right to privacy. Also, this implies that citizen himself/herself also cannot waive his/her fundamental rights which are inalienable and cannot be parted with even by the consent of the concerned citizen. State thus has no right of any kind to take away the fundamental right of any citizen by citing the doctrine of waiver.
                                  Unquestionably, while ripping apart the majoritarianism, Justice Chandrachud also minced no words in holding that, “The guarantee of constitutional rights does not depend upon the exercise being favourably regarded by a majority of the population. The test of popular acceptance does not furnish a basis to disregard the right to liberty. Diverse and insular minorities face the grave danger of discrimination for no reason other than their views/opinions”.
                                        He almost struck down Section 377 IPC when he held that sexual orientation is implicit in the right of choice, which is a facet of the right to privacy. He also held that, “The 2014 judgment’s view that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders was not a sustainable basis to deny the right to privacy”.
                                             The Bench observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as one’s sexual orientation, as an element of privacy and dignity.” In separate judgments, the Constitution Bench, led by Chief Justice of India JS Khehar concluded that the 2014 verdict by a two-Judge Bench of the Apex Court pandered to a “majoritarian” view to deny the LGBT community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.
                        Now coming to the all-important question of privacy being a fundamental right, while rejecting the government’s stand that the Constituent Assembly consciously excluded privacy from the fundamental rights, Justice Chandrachud held the framers did not reject privacy as an integral part of liberty. He listed as many as 15 fundamental rights that the judiciary has created over the years. He also held that the judicial recognition of rights is not an amendment of the Constitution, but a legitimate exercise of the court’s functions.
                                  On the face of it, when Centre argued that privacy is already a statutory right and there is no need to declare it a fundamental right, Justice Chandrachud rejected Centre’s contention and emphasized that fundamental rights have a unique purpose – to put such rights beyond the pale of majoritarian legislature. He also sought to make it clear that privacy protects heterogeneity and pluralism, and the diversity of our cultures.
                                     All said and done, all the 9 Judges who delivered this landmark judgment were unanimous that right to privacy is a fundamental judgment. In his 44-page judgment, Justice Chelameswar while agreeing with Justice Chandrachud and Justice Justice Nariman said that, “The mere absence of privacy in the text of the Constitution does not mean anything; the silence of the Constitution cannot be used to deny rights. That will be an affront to the wisdom of the framers of the Constitution. The text of the Constitution is only the primary source of understanding it; its silences are equally important.” Justice Chelameswar says that privacy is newest gem from Constitution’s dark mine.
                                       In his 122-page judgment, Justice RF Nariman emphasized that, “Mere statutory recognition of privacy is not sufficient, and recognition of privacy as a fundamental right is necessary as citizens enjoy fundamental rights despite the government they may elect. In interpreting the Constitution, courts can read more rights.” In his brief 24-page judgment, Justice AM Sapre held that, “Unity and integrity of the nation cannot survive unless the dignity of every individual citizen is guaranteed through privacy. The three concepts of liberty, equality and fraternity are to be read together. Each and every right could not be written in the Constitution and courts may read as additional rights.”
                                        In his 40-page opinion, Justice SA Bobde rejected government’s stand that privacy is just a common law right and not a fundamental right and said it is both. He said the content is identical, only the incidence of burden and the form of enforcement differs. He quoted religious texts such as the Sunna of the Prophet and the Holy Bible to demonstrate that privacy has always been recognised as important.
                         He said even Arthashastra recognized it. He went on to say that, “A woman ought not to be seen by a male stranger seems to be a well-established rule in the Ramayana. The Arthashastra prohibits entry into another’s house, without the owner’s consent. Similarly in Islam, peeping into others houses is strictly prohibited.” He held that, “Privacy is the necessary condition precedent for the enjoyment of freedom under Part III of the Constitution. Not recognizing character of privacy as a fundamental right is likely to erode the very sub-stratum of personal liberty guaranteed by the Constitution. Any de-recognition or dimunition of right of privacy will weaken fundamental rights which have been expressly conferred.”
                                          On a concluding note, it must be reiterated that right to privacy cannot be curtailed or abrogated by merely enacting a statute but can be done by only a constitutional amendment after complying with certain constitutional prerequisites. The right to privacy includes the right to be left alone. Also, we must remember that right to privacy like other fundamental rights cannot be absolute and is subject to reasonable restrictions. It was rightly held in this landmark judgment that, “Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.”

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.   
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Let me at the very outset begin by voicing my seething anger and uttermost dismay at the ruthless manner in which eight Students Islamic Movement of India (SIMI) members were killed by police in Eintkhedi village on the outskirts of  Bhopal hours after they escaped from the central jail after surrounding them from all sides. They were certainly not terrorists as their cases were yet to be decided and they were just undertrials. Even if terrorists escape and they are unarmed, it is the bounden duty of police to capture them alive and they have no right to spray bullets on them on the plea that they are terrorists!
Killing Of Unarmed Undertrials Is Nothing But Cold Blooded Murder

                                                       How can police be so insensitive? Why police failed to realize that their staying alive was precious even if they were terrorists in order to obtain valuable information on the future strikes being planned by SIMI? Why police did not try to capture even one undertrial prisoner out of the 8 alive whereas it should have tried to capture all of them alive?
                                               What  was there for police to hide? Why didn’t police fire at leg? Why didn’t police try to capture even one of the undertrial alive? When these undertrials had no weapon what was the need for police to shoot all of them? What does all this show?
                                                           Police role in this entire murky affair comes under a heavy cloud as several news channels were showing audio clips suggesting that the police were being instructed to “finish them all”, and videos that show police personnel shooting at bodies on the ground. It is hard to believe police version as it is full of inconsistencies and loopholes! A lot more was said even though the voice was being disturbed by which one could draw the clear inference that policemen were being instructed to kill and they were feeling very happy to kill them.
                                             There can be no gainsaying the fact that police has to abide by rules and regulations even while apprehending terrorists and they cannot be shot dead inspite of being unarmed as most unfortunately we see here. When they could have been captured alive, why were they killed at the first instance? Why no attempt was made to catch them alive?
                                                                       Why Chief Minister Shivraj Singh Chouhan after announcing cash reward for those policemen who killed them was later compelled to order a judicial inquiry? Why CM was compelled to withheld reward for those policemen who were earlier being praised for bravery? What is the bravery in killing unarmed undertrials?
                                      Let me mince just no words to say that there are nothing but holes and holes in the government’s version about the killing of 8 SIMI operatives who had escaped from Bhopal jail. How come 8 terrorists could escape from such a heavily guarded prison after killing one policemen – Head Constable – Ramashankar Yadav and yet police then did just nothing? How come majority of the jail employees were on leave on that day?
                                           How come they were able to travel so long and yet police could not catch them? How come they all stayed together and didn’t disburse as the absconders from jail generally do? How come no one came to know anything when these terrorists killed one policemen in jail?
                                           I find it very hard to believe that these 8 SIMI men used toothbrushes, bed sheet-ladders and spoons to escape from jail and police armed with weapons and everything necessary to defend themselves just could not do anything to stop them from easily escaping from such a heavily guarded prison. A senior police officer told The Indian Express on the condition of anonymity that the extent of “inside help” involved in the jailbreak was “staggering”. Why those who are involved in providing “inside help” still at large and not arrested for committing a crime worse than terrorism itself – abetting and aiding undertrial prisoners to escape? Why only 5 policemen have been just suspended and not arrested and jailed so that they are unable to influence the investigation in any manner?
                                             Why the three CCTV cameras installed where the 8 SIMI undertrials were lodged in Block B were non-functioning due to which nothing could be captured in it? Why all the three CCTV cameras installed were non-functioning at the same time and that too where these 8 SIMI men were lodged? Why nothing was done to get them functional? Why the other 80 cameras were all working and only these 3 where these SIMI undertrials were lodged were non-functional? How this very jail got the prestigious ISO 9001 certification and yet 8 undertrials escaped so easily?
                                                   Justice Santosh Hegde who is an eminent person who directly became the Supreme Court Judge because of his immense intellect and knowledge says that in an encounter a person or an accused has to be shot below the waist. How come they were all shot above the waist, some in the chest too and no one in the foot? Was it just a co-incidence? No, it was a pre-planned cold blooded murder.
                                         Senior eminent lawyer – Parvez Alam who is the lawyer of the Bhopal accused says that, “As a lawyer, I can say there was a possibility that they would have been acquitted. There was no proof that they were SIMI members. In Khandwa too, there was a similar case against 18 individuals and they were all acquitted. The court said they were not SIMI members. This is a question which needs to be answered for these eight men too. Mujeeb (one of the men killed) had a court hearing scheduled two days after the killing. Why would he flee? In the court, it was not proved that that they were part of any unlawful organization. It is wrong to dub them terrorists, they are innocent until proven guilty.”  
                                      Parvez Alam also very rightly points out that, The first statement from the State government said they had no weapons on them when they were killed. Later, they said the accused had fired first. If they had indeed fired, why was not any weapon discovered from them? Even the local villagers denied seeing any weapon with any of the men killed. And, if going by the official version, they could procure weapons, new clothes, jeans, T-shirts, sneakers, as also pista (pistachio), badam (almond) and kishmish (raisins), why could not the outside aide get them a vehicle to travel in after the jailbreak? Why did they have to walk 10 kilometres in eight hours and wait for the police? Usually, in any jailbreak, the prisoners run in different directions and assemble at one place after the din dies down. Here, we are being sold the implausible story of prisoners sticking together in a group after fleeing from jail. The fact of the matter is they were killed in cold blood. The policemen probably dumped them into a van and killed them altogether.”
                                               Why the three cops who the government said were injured in the encounter have gone missing? Why is there an unwillingness on the part of the police to share details? Why one of the three policemen said to have been seriously injured has been attending office without a break since the encounter on the outskirts of Bhopal onOctober 31. Why police is not giving details of the hospital where these three cops said to have been injured were referred to?
                                             How was it possible to know that jail warder Ramashankar Yadav was killed with a knife made of kitchen utensils even before any such weapon was found? Why the prisoners chose to scale a stretch of the outer wall that was next to a watch tower manned by two sentries round-the-clock? Why they did not chose any other point? Why no one failed to notice them while they were escaping?
                                              Why eyewitnesses were giving conflicting versions of the alleged shootout? Were some of them being tutored? Some said that both sides shot at each other but some said they pelted stones and shouted anti-India and pro-Islamic slogans but never fired shots! Who is telling the truth? Only an independent judicial inquiry headed by an eminent Supreme Court Judge of impeccable credentials like Justice Santosh Hegde should be tasked with the onerous job of finding out the real truth!
                                          Why only two warders were available to keep an eye on the prisoners? Why there were not more to keep a tab on these prisoners? Why no Special Armed Force (SAF) guard was able to locate the escapee from the 25-foot watch tower? Were they sleeping? Why the first warder who was on duty from 8 pm to 2 am did not go near the block where the SIMI cadre were lodged? Why the surveillance cameras were not working?
                               Parvez Alam who as lawyer represented these 8 SIMI operatives in court very rightly points out that the police’s version was based on pure fantasy. He also rightly asked “Can you believe the escapees used keys made of toothbrushes and tongue cleaners to open eight different locks?” He also made it clear that, “I will soon file a writ petition in the High Court and demand a high-level judicial or CBI probe.” Speaking for myself, I feel there should be only a judicial probe and not CBI because CBI too can be influenced. A judicial probe and that too headed by an eminent and impeccable former Judge of the Supreme Court as I had pointed out earlier also.  
                                       More than a year before they were killed in an encounter in the outskirts of Bhopal, one of the 8 SIMI activists – Akeel Khilji was acquitted of charges under the stringent Unlawful Activities (Prevention) Act (UAPA) by a court in Khandwa. Coming down heavily on Madhya Pradesh police and the investigating officers, the court had observed that the allegations listed in the chargesheet were “not believable” and questioned the jurisdiction of the investigating officer to carry out the probe under UAPA. Khilji was arrested on charges of causing enmity between religions and the UAPA on June 13, 2011 and acquitted four years later on September 9, 2015. The court had also acquitted Abdullah, the brother of Zakir Hussain who was also killedin the encounter, and Khilji’s son Mohammad Jaleel in the same case. Two other activists killedin the encounter, Amzad Ramzan Khan and Mohammad Saliq were also named as accused in the case  but a judgment was not passed against them.
                                       Was it possible for the accused to scale a 32-foot-high wall of the most secure jail in Madhya Pradesh without being noticed by anyone? Was it possible for the accused to lay their hands on weapons in such a high security jail? Was it possible to make duplicate keys out of wood and toothbrush? Why are there contradictory statements from police officials on whether the alleged SIMI operatives had weapons or not? Why no bullet fired by these 8 undertrials have been recovered? Why no weapons have been recovered from these 8 undertrials?  
                                     How can it happen that they opened the gates of their cells themselves but no one noticed them while they were doing so? How can it happen that they caught hold of Chandan Ahirwar, gagged him and put him in the room but no one again noticed? How can it happen that they killed one policemen – Head Constable Ramashankar Yadav but no one noticed them? How can it happen that with just a steel plate - Ramashankar was killed? How come no one came to know about the murder?
                                            How can it happen that they opened the lock by duplicate keys and that too made from wood and toothbrush but again no one noticed? How can it happen that they climbed one wall but no one noticed, then climbed second wall but again no one noticed and then at the third wall they made a ladder made out of bed sheets but again no one noticed and then they climbed the wall on the ladder and escaped but again no one noticed? How can it happen that these 8 undertrials whom government says made foolproof plan to escape went walking 8 to 9 kilometers in 10 hours and did not fled away in a vehicle?
                                           How can it happen that these 8 undertrial prisoners were able to arrange jeans, T-shirts, sports shoes  in  a short span of time but not vehicle to escape? What was more important for them? Vehicle or jeans, T shirts and sport shoes? Certainly vehicle but what we saw was just the opposite! How can it happen that these undertrials whom government describes as terrorists who had previously also escaped from Khandwa jail were all kept together? How can it happen that security was so lax that they all again escaped so easily and why they didn’t fled in a vehicle?  This is completely unacceptable and is nothing but a “bunch of lies”! The gate from which they escaped was not beyond the reach of the guards. How did the watchtowers within the premises of the jail complex could have missed it while the undertrials were scaling up the walls? Why 8 undertrials did not disperse at different directions so that no one could notice rather most amazingly stayed together?
                                           Parvez Alam  who represented the 8 undertrials killed by police while rubbishing the jailbreak theory floated by police said that, “No, not at all. The police version, in fact the official version, is full of holes. The police claim sheets of cloth were used to scale the 32-foot-high (10 metre) wall. For that one person would have had to climb such a high wall. It is not possible for an individual to climb 32 feet without support. There were eight undertrials. So, normally, they would have had eight sheets between them. If you include the sheets which they might have been given to spread on the floor, it still makes only 16 sheets. (The police claimed that the prisoners had 32 sheets.) From where did they procure the rest of the sheets? There is no answer to that. Also, I believe there is CCTV footage in every nook and corner of the jail. Why has it not been disclosed? It has to be shared with the public. It will reveal it all.”
                                      He also rightly said that, “It is a fake encounter, a cold-blooded murder. It was pre-planned murder and I believe they did not escape the jail, but they were made to flee by the police.” Terrorists are trained in Pakistan and other hostile countries to kill innocents but who trains these men in uniform to kill innocents by staging fake encounter? They are more dangerous than terrorists and are responsible for many innocent turning into terrorists when their innocent relatives are killed in fake encounter.
                                         Even an armless terrorist cannot be killed by police or anyone else unless there is a direct threat to the person who kills the terrorist. Killing armless undertrials who had not yet been declared terrorists in a pre-planned cold blooded murder is an inexcusable crime which cannot be condoned under any circumstances. Those policemen who killed these unarmed 8  undertrials and those who gave order to them to kill them and those politicians who too were directly involved in ensuring that they were ruthlessly killed must be put behind the bars and they should be prosecuted for murder as in any other case if we really want our country to be known as “the land where law prevails and not gun”.
                                            Why the CM of Madhya Pradesh Shivraj Singh Chouhan was in a tearing hurry to honour those policemen involved in the controversial and highly suspected fake encounter killing? Why the CM was in a tearing hurry to announce cash award of Rs 5 lakh even before confirming that the encounter was genuine? A few days after the death we saw how three leaked videos surfaced whose authenticity the government did not deny and in which we ourselves heard how the killing was being ordered and celebrated. This is just not done in a democratic country like India.
                                              ATS Chief Sanjeev Shami told NDTV that the security forces were not fired at as the alleged SIMI terrorists did not have any weapons when they were killed. The use of force was still as per law, he emphasized. This statement we can see is in direct contradiction with the claim made by Inspector General of Bhopal Police Yogesh Choudhary who said in the gov ernemnt’s first official announcement of the incident at a press conference that the forces killed the eight alleged SIMI terrorists in “retaliatory fire” and that two country-made pistols and knives were found on them.
                                      The contradictory statements from official sources make it “curiouser and curiouser,” just as Alice exclaimed in Alice’s Adventures in Wonderland & Through the Looking-Glass. Why there is so much of contradiction between  what these two police officers said? Who is speaking lies? Who is speaking truth? We just don’t know. But truth must come out. Only an independent judicial probe headed by an eminent former Supreme Court Judge can get to the bottom of the matter and find out the real truth. But is the government interested in allowing the truth to come out? We shall know soon by its actions!   
                                       Killing of unarmed undertrials by men in uniform is nothing but cold blooded murder which I rate worse than terror killing. If men in uniform are allowed to get away after indulging in the worst form of killing, it will only set a very wrong andf dangerous trend which no democratic country like India can ever allow to happen under its very nose under any circumstances. To declare an undertrial as a terrorist even before he is convicted by a competent court is most deplorable and cannot be justified under any circumstances. The absence of arms and ammunition, photographs of the undertrials with arms raised as if they had surrendered, policemen shooting at the fallen men mercilessly, contradictory statements from authorities and bullet injuries primarily above the waist where it is forbidden are only some of the evidences that are a clear indicator of the cold-blooded fake encounter killing.
                                Truth must come out. Those men in uniform who are guilty must not be spared under any circumstances. There can be just no excuse of any kind for killing unarmed undertrials and that too after cornering them. Those who are guilty of killing these 8 undertrial prisoners who had not been designated as terrorists by any competent court must be made to face the most stringent punishment apart from being sent to jail. No reward should be given to them till they are cleared by a judicial inquiry and as I have said it repeatedly, it must be headed by a very eminent former Supreme Court Judge who conducts the inquiry on this impartially so that the truth comes out fully. India has an impeccable reputation in handling prisoners and the whole world knows that we treated more than 93,000 Pakistani prisoners of war very well and returned them back to Pakistan safely. This impeccable reputation that we have earned over the years must be maintained at all costs and under all circumstances. No compromise here at all, come what may!   
                                       Article 359 of the Constitution clearly lays down that Articles 20 and 21 are non-derogable. Article 21 of the Constitution clearly stipulates that no one shall be deprived of the right to life except in accordance with the procedure established by law. Justice JS Verma who was former CJI and former NHRC chairperson rightly said that difficult circumstances such as terrorism or insurgency could not be a justification for encounters. International human rights law also prohibits the arbitrary deprivation of life under any circumstances.
                                          Article 3 of the Universal Declaration of Human Rights states that, “Everyone has the right to life, liberty and security of person”. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) holds that, “Every human being has the inherent right to life. The right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 4 of the ICCPR states that this right cannot be waived “even in times of public emergency threatening the life of the nation”.
                                        Also, under Article 2(3) (a) and (b) of the ICCPR, state parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective. The government also ratified the ICCPR in 1979 and by ratifying an international treaty unconditionally which enshrines the right to life, India is obliged to not only respect the right to life in principle, but also to take effective measures to ensure that extrajudicial killings are not allowed a free run as they clearly contravene the right to life. India has a free judiciary which has always raised its voice against fake encounter killings and has never dithered to punish those guilty men in uniform when there is clinching evidence pointing to the guilt of the accused.
                                        One hopes that in this latest Bhopal encounter killing of 8 undertrials if it is proved that the encounter was fake, no guilty men in uniform would be spared under any circumstances because killing of unarmed undertrials is nothing but cold blooded murder of the worst kind worse than even terror killing as it is executed most brutally not by hardcore terrorists but by those who don uniform! This will send a clear and loud message to one and all that no one is above law. Even those who don uniform have to always abide by law and cannot take law in their hands as and when they like by being trigger happy and yet roam free with no one to check them or question them on why they killed an undertrial when they could have caught them alive?
                                             The biggest testimony to the irrefutable fact that Bhopal encounter was fake and it was nothing but cold blooded murder is the latest Supreme Court directive of July 24 by a Bench headed by Justice Ranjan Gogoi to Centre and Madhya Pradesh government on the plea of Mehmooda Mohammed Salim Mucchale who is mother of Mohammed Khalid – one of the 8 killed in the Bhopal encounter case asking categorically that why the CBI was not called in to investigate this Bhopal encounter that left 8 SIMI undertrials killed by bullets of policemen! Mehmooda in her petition cited the Supreme Court ruling in Rubabuddin Sheikh v State of Gujarat & Ors (2010) and RS Sodhi, Advocate v State of UP and Ors (1992) in which Supreme Court directed CBI to probe a case in which 10 were gunned down by Punjab police in an encounter.  Truth must come out! Those guilty of cold blooded murder of 8 undertrials must be identified and punished strictly as per law! They don’t deserve mercy of any kind! There can be no excuse for cold blooded murder and the guilty must face law! It is the bounden duty of Centre and MP state government to strictly adhere to what Supreme Court has said which should have been done voluntarily and make no attempt of any kind to whitewash such a cold blooded murder of 8 undertrials!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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