Businesses and the Constitutional Rights

PGP II, Term 4, 2021

Course Title: Businesses and the Constitutional Rights (BCR)

Term and sessions: Term IV, 15 Sessions (0.75 credits)

Instructor: Akhileshwar Pathak

Context

Like all modern constitutions, the Constitution of India guarantees several basic
rights to the subjects against the power of the state. These rights are in the chapter
on the Fundamental Rights in the Constitution. These basic rights are truly
fundamental and govern all aspects of our economic, social and political life. These
are the foundations on which the republic rests, the architecture on which the nation
would grow, and the everyday lived experiences of the society.

It is no surprise that businesses and the fundamental rights are completely

enmeshed. The interface between businesses and the rights can take four forms.
One, it can be functional and specific. For example, a company which has lost out a
government contract can challenge the award of the contract. Two, it can be sectoral
and affect an industry. For example, restrictions on putting telecommunications
towers, and its constitutional challenge, impacts the telecom companies. Three, the
interface can be overarching and foundational, affecting all businesses. For example,
constitutional validity of a business law or taxation law can impact all businesses.
Four, the interface can be a window to the future. An example of this is the right to
privacy of individual electronic data. Due to these interconnections, businesses have
been major claimants of the rights before the courts, propelling the development of
these rights. The rights are so basic and foundational that one must have a good
grasp of their scope and functioning. It is not easy to learnt this field of law through
self-study. It needs a structured introduction and guided navigation. The proposed
course is to this end.

Exploring the Constitutional Rights

Constitutions are founding documents. For this reason, these express the rights in
basic terms and generalities. The Constitution of India expresses the rights in words
like, equality, freedom, life, speech and business. There is nothing technical or legal
about these words. Why then do the judicial pronouncements on the constitutional
rights seem opaque and inaccessible? The reason is, the judges, with changing
times, capture the sensibilities of the society differently and give a changed
expression to the terms. At the same time, the judges are bound by the prior
judgements. Thus, there is always a tension in following the prior judgements and
yet breaking away from them. This is secured by presenting to be following the prior
judgements and yet, bringing about changes.

The second aspect is that the Fundamental Rights are not absolute rights. The state
can impose, generally speaking, reasonable restrictions on the rights for the larger
1
social good. The courts assess the balancing and decide whether the scale has tilted
making the law excessive and violative of the rights. This exercise of balancing
varies from case to case and overtime.

Thus, while the constitutional rights are cast in generalities, a general common
sense meaning of these terms would be inadequate and at variance with the judicial
view. The meaning of a term and the associated right has accumulated since the
inception of the constitution, by a chain of court judgements. The development of the
meaning of the terms over the decades is not linear and cumulative. The meaning is
contested and has ruptures.

The development of the rights can be seen in four phases. The first phase is from
the start of the Constitution to 1977. In this period, the Supreme Court, as the
constitution was new, gave a somewhat literal interpretation of the terms. Second
phase is post Emergency, 1978- 95. The imposition of Emergency shook the
Supreme Court. In this period, the court vastly expanded the scope of the
Fundamental Rights. The third phase is 1995-2010. In this period, the judgements
accommodated liberalisation and globalisation of the economy. The fourth phase is
current ongoing.

Objective

The objective of the course is to explore the scope and working of the Fundamental
Rights of the Constitution which relate to and affect businesses. This includes the
following articles of the Constitution:

1. Article 12: Definition of ‘state’

2. Article 14: Right to equality

3. Article 19: Right to freedom of speech and expression; association; and

business, trade and profession

4. Article 21: Right to life and privacy

Pedagogy

The course will use case discussion, class exercise and group presentations.

Evaluation

The evaluation components for the course are as follows:

Group work: 25%

Quiz: 25%
End Term Exam: 40%
Class Participation: 10%

Course Material

2
The constitutional rights come from the court judgements of the Supreme Court of
India. The court judgements are the source of the constitutional rights. The
judgement, however, are written as official records, and are voluminous with diverse
factual details and citations of prior judgements. Reading material (cases and notes)
will be developed on the judgments which will be the primary reading material for the
course. This may be supplemented with commentaries and articles. The judgements
indicated are suggestive and will be updated in each offering.

Session Plan1

Session 1

Topic: Introduction

The session will introduce the arrangement of the Constitution and the Fundamental
Rights and explore the early judgements of the Supreme Court.

Reading: Early years of the constitution

Session 2

Topic: Founding Judgements

In the early years of the constitution, the Supreme Court gave a meaning to the
articles in the chapter on the fundamental rights. The judgements became the
foundation for the rights to develop in the subsequent decades. The session would
explore the early decisions and the foundation that got created.

Reading: Early years of the constitution

Session 3

Topic: Right to Equality: Introduction

Article 14 of the Constitution confers to every person ‘equality before law’ and ‘equal
protection of the laws’. The Maneka Gandhi Case, vacated the earlier narrower
meaning by formulating that any arbitrary or unreasonable action of the state violates
the right to equality. The session will explore this landmark case.

Reading: Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Session 4

Topic: Article 12: Scope of ‘state’

The session will introduce the arrangement of the Constitution and the Fundamental
Rights. The Fundamental Rights apply only to the ‘state’ as defined in Article 12, and
not private bodies. The definition of state includes ‘other authorities’, which does not
1
The sequence of topics has been reworked to secure better access and learning. The original
session plan is in the annexure.

3
have a ready and fixed meaning. The term has been a subject of judicial
interpretation since the inception of the Constitution. The session will explore the
early decades, culminating in the International Airport Authority of India Case.

Reading: The Airport Authority of India Case: Public Corporations and the
Fundamental Rights; and The Ajay Hasia Case: Society and the Fundamental Rights

Session 5

Topic: Right to Equality: Award of Licences and Contracts

The award of licences and contracts by the government too is a state action. The
International Airport Authority of India Case formulated that this is subject to the right
to equality. Thus, an award of a contract or licence by the government, following a
process or procedure which is arbitrary or unreasonable, is violative of article 14.
Every major award of a contract by the government gets challenged before the
courts. A chain of cases has developed on this theme over the past 40 years. The
session will explore the theme of award of contracts and licences.

Reading: Reliance Telecom Limited v Union of India, AIR 2017 SC 337.

Session 6

Topic: Right to Equality: Regulations of Businesses

A law which makes discriminatory categories of people without basis or is arbitrary or

unreasonable is violative of the right to equality. Laws regulating businesses are
frequently challenger before the courts. The session will explore the application of
the right to equality to regulations of businesses.

Reading: Right to Equality and Manifest Arbitrariness: The Call Drop Case; and
Right to Equality: Does the Insolvency Code Meet the Muster

Session 7

Topic: The Changing Contours of ‘state’

The International Airport Authority of India Case expanded the scope of ‘other
authorities’ by including all ‘instrumentalities’ and ‘agencies’ of the government in its
fold. It gave a set of criterion for deciding whether a body qualified to be an
instrumentality or agency of the government. The criterion got applied and
consolidated in the subsequent decades. Liberalisation and globalisation of the
economy put the public sector organisations in competition with the expanding
private sector. The state controlled bodies got transformed and also, expected a
level playing field. The term ‘other authorities’ took new shape in the context of
globalisation and liberalisation.

Reading: Zee Films and the BCCI: The Award of Broadcasting Rights; and Dr. Janet
Jeyapaul v. SRM University: Private Organisations and Public Rights

4
Session 8

Topic: Review and Integration

The session reviews and integrates learning in the prior sessions.

Session 9

Topic: Freedom of Speech

What makes us human is our capacity for speech and expression. Article 19(1)(a)
guarantees the freedom for speech and expression. The freedom is subject to
‘reasonable restrictions’ in the larger interest. The freedom is available only to
citizens and not corporations. The freedom significantly affects politics, newspapers,
artists, media and entertainment, internet, and businesses. The session will explore
the development of the principles of ‘freedom of speech and expression’.

Reading: Free Speech and the Social Media: The Shreya Singhal Case

Session 10

Topic: Freedom of Commercial Speech

The Supreme Court stipulated in the Tata Press Limited Case that speech includes
‘commercial speech’. Thus, advertisements and all other forms of business
communication and expression are protected by the ‘freedom of speech and
expression.’

Reading: Tata Press Limited v Mahanagar Telephone Nigam Limited, AIR 1995 SC
2438; and Freedom of Speech and the Internet Shutdown: Supreme Court of India- I

Session 11

Topic: Freedom of Business, Trade and Profession

Article 19(1)(g) guarantees to every citizen the freedom to carry on any business,
trade, profession or occupation. Like all freedoms, only reasonable restrictions can
be imposed on this freedom in the larger general interest. The freedom has been
continuously brought before the courts over different aspects of businesses and their
regulation. The session will explore the development of this freedom and its working
in the liberalised economy.

Reading: Right to Business, Trade and Profession: The Call Drop Case

Session 12

Topic: Right to Life

Article 21 of the Constitution provides that the ‘life or personal liberty’ of a person can
be deprived only by following a ‘procedure established by law.’ In the early decades,

5
two questions came before the courts. The first question was would any procedure
established by law do or the procedure must be a fair one? The second question
was whether ‘life’ was only in a bodily corporeal sense or an extended one, including
everything which makes life human and meaningful. The Maneka Gandhi Case
settled both these questions in the affirmative. The session will explore the
development of ‘right to life’, culminating in the Maneka Gandhi Case.

Reading: Maneka Gandhi v Union of India, AIR 1978 SC 597.

Right to Privacy: A fundamental Right?

Session 13

Topic: Right to Privacy

Having given an extended meaning to the term ‘life’, does the right to life include the
right to privacy? The judgements of the Supreme Court were conflicting. The
Supreme Court, in the Aadhaar Case, took it up for resolution. The session will
explore the vast scope of ‘privacy’ and resolution of the right to privacy.

Reading: Right to Privacy: A fundamental Right?

Session 14

Topic: Internet, speech and business

The session will explore limits on individual freedom in the age of internet.

Reading: Freedom of Speech and the Internet Shutdown:

Supreme Court of India-II

Session 15

Topic: Electronic Data, Privacy and Business

Businesses have come to be done with and through electronic data. Alongside,
electronic data relates to concerns on privacy.

Reading: To be decided

6
Early Years of the
Constitution

7
8
 Romesh Thappar v. The State of Madras

Romesh Thappar was the printer, publisher and editor of a newly started weekly
English journal called CROSS ROADS. 2 The journal was printed and published in
Bombay, now Mumbai. The Government of Madras imposed a ban on the entry and
circulation of the journal in the State under the Madras Maintenance of Public Order
Act, 1949. The act gave the power to the state government to pass order:

… for the purpose of securing the public safety or the maintenance of public order, to
prohibit or regulate the entry into or the circulation, sale or distribution … which
undermines the security of or tends to overthrow the State.’

The order of the government, dated March 1, 1950, stated the basis for the order to
be ‘for the purpose of securing the public safety and the maintenance of public
order’. Romesh Thappar challenged that the state government had made a law
which violated his freedom of speech and expression under Article 19(1)(a).

Constitutional Provisions

Article 13 of the Constitution states:

13. Laws inconsistent with or in derogation of the fundamental rights. (1) All
laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to
the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation,

notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other

competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular areas.

Article 19(1)(a) of the Constitution read:

19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;

2
Romesh Thappar v. The State of Madras, AIR 1950 SC 124
9
 (2) Nothing in sub-cl. (a) of cl. (1) shall affect the operation of any existing law in so
far as it relates to, or prevent the State from making any law relating to, libel, slander,
defamation, contempt of Court or any matter which offends against decency or
morality or which undermines the security of, or tends to overthrow, the State.

The order of the government prohibiting circulation of Crossword was certainly a

‘law’ within article 13. There were two questions before the court. Was circulation of
the newspaper covered under the ‘freedom of speech and expression’ in Article
19(1)(a)? If the answer were no, there would be no question of violation of any right.
The court would not be able to review the law. If the answer were yes, one would
move to the second question. The second question would be: Is the law supported
by one or more of the subjects listed in Article 19(2).

Article 19(1)(a)

The Supreme Court, taking support from a judgement of the US Supreme Court,
which is quoted below, thus, answered the first question:

… there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is ensured by the freedom of circulation.
‘Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value’. It is therefore
perfectly clear that the order of the Government of Madras would be a violation of
[Thappar’s] fundamental right under Art. 19(1)(a), unless … it … is saved by the
reservations mentioned in Cl. (2) of Art. 19.

The freedom of ‘speech’ was to not only write and print but also circulate the writing
by freely distributing it.

Could American Judgement be used?

The court relied on the judgement of the US Supreme Court. Could the US
judgement be used in India? The Constitution of the United States is the oldest
written constitution. The framers of the Indian constitution drew significantly from it,
including the freedoms. The Supreme Court of India did not even consider it
necessary to justify it. The freedom of speech is in the First Amendment of the
Constitution of the United States. It reads: ‘Congress shall make no law … abridging
the freedom of speech, or of the press…’ Congress is the legislative body in the US.
The wording of the freedom in the US and Indian constitution is different. In the
Indian constitution it is ‘speech and expression’, in the US Constitution, it is ‘speech
or the press’. With the wording in the Indian constitution, one could claim that speech
refers to only verbal spoken communication. There is nothing given about it. But the
press was already well established in the US so much so the Constitution recognised
it by the specific mention. The India court, by building this bridge, gave a leap to
readily recognise all forms of communication, including writing and printing to be a
fundamental right. To be able to dissemination communication was an integral part
of the freedom.

The Balancing Act

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The freedom to print and circulate a newspaper was a part of the freedom of ‘speech
and expression’. But this was only one side of the story. The freedom is not absolute.
Article 19(2) gives the power to the state to impose ‘reasonable restrictions’ for
certain subject or purposes. In this balancing, which side should get the benefit of
the caution. In other words, the two being equal, which one should come first. The
court noted:

Thus, very narrow and stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression and this was doubtless due to
the realisation that freedom of speech and of the press lay at the foundation of all
democratic organisations, for without free political discussion no public education, so
essential for the proper functioning of the processes of popular Government, is
possible. A freedom of such amplitude might involve risks of an abuse. But the
framers of the Constitution may well have reflected with Madison who was 'the
leading spirit in the preparation of the First Amendment of the Federal Constitution",
that "it is better to leave a few of its noxious branches to their luxuriant growth than,
by pruning them away, to injure the vigour of those yielding the proper fruits"3

The very reason for the fundamental rights is to protect the individuals from the
power of the state. The focus has to be on the rights. The rights and their protection
has to come first.

Article 19(2) as it stood then stated that the freedom of speech and expression will
not prevent the state from making any law ‘relating to, libel, slander, defamation,
contempt of Court or any matter which offends against decency or morality or which
undermines the security of, or tends to overthrow, the State.’ To recall, the object of
the law made by the state of Madras was for "securing the public safety" and "the
maintenance of public order". The court noted:

Now "public order" is an expression of wide connotation and signifies that state of
tranquillity prevailing among the members of a political society as a result of the
internal regulations enforced by the Government which they have instituted. …
"public safety" is used as a part of the wider concept of public order …

The court contrasted it with the permitted subject under Article 19(2), ‘the security of,
or tends to overthrow, the State.’ And noted:

The Constitution thus requires a line to be drawn in the field of public order or
tranquillity marking off, more or less roughly, the boundary between those serious
and aggravated forms of public disorder which are calculated to endanger the security
of the State and the relatively minor breaches of the peace of a purely local
significance treating for this purpose differences in degree as if they were differences
in kind.

Article 19(2) covers only serious disorder which endanger the very security of the
state. Anything less than that is not covered. The court, thus, concluded:

3
(Quoted in Near v. Minnesotta 283 U. S 607 at 717-8 ).
11
 We are therefore of opinion that unless a law restricting freedom of subjects and
expression is directed solely against the undermining of the security of the State or the
overthrow of it, such law cannot fall within the reservation under cl (2) … although
the restrictions which it seeks to impose may have been conceived generally in the
interest of public order. It follows that [the law of the State of Madras] which
authorises imposition of restrictions for the wider purpose of securing public safety or
the maintenance of public order falls outside the scope of authorised restrictions under
cl. (2), and is therefore void and unconstitutional.

Thus, the law under which the order prohibiting the entry of the newspaper
Crossroads was issued was declared unconstitutional.

12
 Brij Bhusan v. The State of Delhi

Brij Bhusan and others were the printer, publisher and editor of an English weekly of
Delhi called 'ORGANIZER'.4 The Chief Commissioner of Delhi issued an order
stating that the weekly was publishing highly objectionable matter constituting a
threat to public law and order. It required the weekly:

… to submit for scrutiny … before publication … all communal matter and news and
views about Pakistan including photographs and cartoons other than those derived
from official sources or supplied by the news agencies…

Brij Bhusan challenged the order as violative of the freedom of speech and
expression. Patanjali Sastri J. for the court noted:

There can be little doubt that the imposition of pre-censorship on a journal is a

restriction on the liberty of the press which is an essential part of the right to freedom
of speech and expression declared by Art.19 (1) (a). As pointed out by Blackstone in
his Commentaries,

"the liberty of the press consists in laying no previous restraint upon

publications, and not in freedom from censure for criminal matter when
published. Every freeman has all undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the press."
Blackstone's Commentaries, Vol. IV. pp. 151, 152.

Another judge, Fazl Ali, J. noted on the freedom:

It must be recognised that freedom of speech and expression is one of the most
valuable rights guaranteed to a citizen by the Constitution and should be jealously
guarded by the Courts. It must also be recognised that free political discussion is
essential for the proper functioning of a democratic Government, and the tendency of
modern jurists is to deprecate censorship though they all agree that "liberty of the
press" is not to be confused with its "licentiousness " But the Constitution itself has
prescribed certain limits for the exercise of the freedom of speech and expression and
this Court is only called upon to see whether a particular case comes within those
limits.

Like the Thappar Case, as the law was for public order, it did not find support of
clause 19(2) and was held unconstitutional.

Following the two cases, the Thappar Case and Brij Bhushan Case, the Parliament
amended the constitution to add ‘public order’ in clause 2. The constitution itself has
provisions for amending the constitution. An amendment requires 3/4 th majority in the
Parliament. Thus, the expression ‘freedom of ‘speech and expression’ in the
inaugural year of the constitution itself came to include not only literal speech but
communications of every kind. The press got included in its fold and the freedom
came to include not to be able to freely disseminate the communication.

4
Brij Bhusan v. The State of Delhi, AIR 1950 SC 129.
13
 Chintaman Rao v. State of Madhya Pradesh

The State of Madhya Pradesh enacted a law to regulate manufacture of bidis,

titled
the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural
Purposes) Act, 1948. The object of the law was to ensure adequate labour for
agricultural operations in bidi manufacturing areas of the state. Under the Act, the
government could fix the agricultural season and prohibit any person from
manufacturing bidis or employ any person for manufacture of bidis. The
government passed an order prohibiting any person residing in certain villages
from engaging in the manufacture of bidis. The affected persons challenged the
order to be a violation of their freedom to engage in any trade, occupation and
profession. Article 19(6) gave the power to the state to impose ‘reasonable
restrictions’ on the freedom. The Supreme Court noted: 5

The phrase "reasonable restriction" connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public. The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course which reason
dictates. Legislation which arbitrarily or excessively invades the right cannot be
said to contain the quality of reasonableness and unless it strikes a proper balance
between the freedom guaranteed in Article 19(1)(g) and the social control permitted
by clause (6) of Article 19, it must be held to be wanting in that quality."

The court applied the principle to the dispute. The government had declared the
agricultural season for a good part of the year. The court noted that the object of
the legislation could have been achieved by limiting manufacture to the
agricultural season. Even in the agricultural season, hours of work could have
been regulated than a complete ban. The court further noted:

The effect of the provisions of the Act, however, has no reasonable relation to the
object in view but is so drastic in scope that it goes much in excess of that object.
Not only are the provisions of the statute in excess of the requirements of the case
but the language employed prohibits a manufacturer of bidis from employing any
person in his business, no matter wherever that person may be residing. In other
words, a manufacturer of bidis residing in this area cannot import labour from
neighbouring places in the district or province or from outside the province. Such a
prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation
whatsoever to the object which the legislation seeks to achieve and as such cannot
be said to be a reasonable restriction on the exercise of the right.

The court further noted that everyone in these villages is not an agriculturists or an
agricultural worker. The law prohibits all persons from engaging themselves in
manufacture of bidi and make a living. The court concluded:

The statute as it stands, not only compels those who can be engaged in agricultural
work front not taking to other avocations, but it also prohibits persons who have no

5
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 1950
14
connection or relation to agricultural operations from engaging in the business of
bidi making and thus earning their livelihood. These provisions of the statute, in our
opinion, cannot be said to amount to reasonable restrictions on the right of the
applicants and that being so, the statute is not in conformity with the provisions of
Part III of the Constitution.

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 The State of Madras v. V. G. Row

V G Row who was the general secretary of People's Education Society, Madras,
registered under the Societies' Registration Act, 1860. 6 The society had the following
objectives:

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and
more specially social science;

(b) to encourage, promote diffuse and popularise political education among people;

(c) to encourage, promote, and popularise the study and understanding of all social
and political problems and bring about social and political reforms; and

(d) to promote, encourage and popularise art, literature and drama.

The state government made an order that the society ‘constitutes a danger to the
public peace’ and banned it activity. Later, before the court, the government
divulged:

… according to information received by the Government, the Society was actively

helping the Communist Party in Madras which had been declared unlawful in August
1949 by utilising its funds through its Secretary for carrying on propaganda on behalf
of the Party, and that the declared objects of the Society were intended to camouflage
its real activities.

Row challenged that the order violated his right to form association under Article
19(1)(c). The relevant part of Article 19 reads:

19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall
have the right— …

(c) to form associations or unions;

(4) Nothing in sub-cl. (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of public order or morality, reasonable restrictions on the exercise of the
right conferred by the said sub-clause.

The court was reviewing the order and the law under which the order was made.
There was no doubt that the law was "in the interests of public order". The remaining
question was, was it ‘reasonable’?

Role of the Court

The court contrasted the constitutional provisions with the US constitution and noted
the duty cast on it to review the law. It noted:

6
The State of Madras v. V. G. Row, AIR 1952 SC 196.
16
 Before proceeding to consider this question, we think it right to point out, what is
sometimes overlooked, that our Constitution contains express provision for judicial
review of legislation as to its conformity with the Constitution, unlike in America
where the S. C. has assumed extensive powers of reviewing legislative acts under
cover of the widely interpreted "due process" clause in the Fifth and Fourteenth
Amendments. If, then, the Courts in this country face up to such important and none
too easy task, it is not out of any desire to tilt at legislative authority in a crusader's
spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is
especially true as regards the "fundamental rights", as to which this Court has been
assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches
great weight to the legislative judgment, it cannot desert its own duty to determine
finally the constitutionality of an impugned statute. We have ventured on these
obvious remarks because it appears to have been suggested in some quarters that the
Courts in the new set up are out to seek clashes with the legislatures in the country.

Scope of ‘reasonable restriction’

The court explored the scope of the phrase ‘reasonable restriction’. It noted:

… both the substantive and the procedural aspects of the impugned restrictive law
should be examined from the point of view of reasonableness; that is to say, the Court
should consider not only factors such as the duration and the extent of the restrictions,
but also the circumstances under which and the manner in which their imposition has
been authorised. It is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each individual statute
impugned, and no abstract standard, or general pattern of reasonableness can be laid
down as applicable to all cases. The nature of the right alleged to have been infringed,
the underlying purpose of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In evaluating such
elusive factors and forming their own conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that the social philosophy and the scale
of values of the Judges participating in the decision should play an important part, and
the limit to their interference with legislative judgment in such cases can only be
dictated by their sense of responsibility and self-restraint and the sobering reflection
that the Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have, in authorising
the imposing of the restrictions, considered them to be reasonable.

The court applied the principles to the case before it. It concluded that the law made
by the state government:

… cannot be upheld as falling within the limits of authorised restrictions on the right
conferred by Art. 19 (1) (c). The right to form associations or unions has such wide
and varied scope for its exercise, and its curtailment is fraught with such potential
reactions in the religious, political and economic fields that the vesting of authority in
the executive government to impose restrictions on such right, without allowing the
grounds of such imposition, both in their factual and legal aspects, to be duly tested in
a judicial inquiry, is a strong element which, in our opinion, must be taken into
account in judging the reasonableness of the restrictions imposed … on the exercise

17
 of the fundamental right under Art.19 (1) (c); for, no summary and what is bound to
be a largely one-sided review by an Advisory Board, even where its verdict is binding
on the executive government, can be a substitute for a judicial enquiry. The formula
of subjective satisfaction of the Government or of its officers, with an Advisory Board
thrown in to review the materials on which the Government seeks to override a basic
freedom guaranteed to the citizen, may be viewed as reasonable only in very
exceptional circumstances and within the narrowest limits, and cannot receive judicial
approval as a general pattern of reasonable restrictions on fundamental rights.

The court held the law made by the state government to be violative of the
constitution.

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 A. K. Gopalan v. State of Madras

The Parliament enacted the Preventive Detention Act, 1950. 7 Under the Act, the
Government of Madras made orders detaining the petitioner without trial. The
petitioner challenged the constitutional validity of the order. This was the first
application involving the fundamental rights before the Supreme Court. The
petitioner contended the violation of articles 19, 20, 21 and 22. We can see the
scope of the claim with the following illustrations. Take the case where a person is
restrained from giving a speech in a rally. 8 This clearly attracts Article 19(1)(a)
‘freedom of speech and expression’. But it is also a restrain on ‘person liberty’ and
should attract Article 21. A person put under house arrest attracts Article 19(1)(d), as
he cannot freely move throughout India and also attracts Article 21. Article 22 is on
arrests only and the article would come to apply. Invariably, a violation of a freedom
would have overlaps. In these cases, should all the articles be applied or only one of
them be applied? The question is an important one. For a law to clear Article 19, it
must meet the criterion of reasonableness stated in the article. For a law to clear
Article 21, it must be by a ‘procedure established by law’. If only one article applies, it
only has to clear the requirement of that article. If both apply, the law has to meet
both the criterion. The restriction has to not only be reasonable but also in
accordance with procedure established by law.

In this case, preventive detention attracted Article 22 which provides on arrest and
detention. The article certainly applies. The petition claimed that detention took
away his freedom of speech, to freely move in India, to practice his trade and
occupation. Thus, all the freedoms listed in article 19 were violated. Further, article
21 was violated as his person liberty was constrained.

In this case, the challenge was under two grounds, violation of Article 22 and 19.
Article 22 deals with arrest and detention and got attracted. Article 22 requires the
state to follow certain measures and restraints for an arrest or detention to be valid.
Gopalan claimed the protection of Article 22. In addition, he brought out, that a
person who was arrested lost his freedom to move freely. Thus, the detention also
attracted Article 19(1)(d), the freedom ‘to move freely throughout the territory of
India’. The implication was the act must comply not only with Article 22 but also
Article 19. Article 19(5) provides the balancing power to the state against the
freedom of free movement, which is, the state can only impose ‘reasonable
restriction’ in the ‘interest of general public’. The court noted:

Reading Article 19 … it appears to me that the concept of the right to move freely
throughout the territory of India is an entirely different concept from the right to
"personal liberty" contemplated by Article 21. "Personal liberty" covers many more
rights in one sense and has a restricted meaning in another sense. For instance,
while the right to move or reside may be covered by the expression, "personal
liberty" the right to freedom of speech … cannot be considered a part of the
personal liberty of a citizen. They form part of the liberty of a citizen but the
limitation imposed by the word "personal" leads me to believe that those rights are
7
A. K. Gopalan v. State of Madras, AIR 1950 SC 27.
8
AIR 1950 SC 27
19
 not covered by the expression personal liberty. So read there is no conflict between
Articles 19 and 21. The contents and subject-matters of Articles 19 and 21 are thus
not the same and they proceed to deal with the rights covered by their respective
words from totally different angles.

The court elaborated and illustrated Article 21 and 19:

Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or
sleep when one likes or to work or not to work when one pleases and several such
rights sought to be protected by the expression "personal liberty" in Art. 21, is quite
different from restriction (which is only a partial control) of the right to move freely
(which is relatively a minor right of a citizen) as safeguarded by Art. 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free
movement in the territory of India. … I am unable to accept the contention that the
word 'deprivation' includes within its scope 'restriction' when interpreting Art. 21.
Article 22 envisages the law of preventive detention. … Therefore, when the subject
of preventive detention is specifically dealt with in [Article 22] … I do not think it is
proper to consider a legislation permitting preventive detention as in conflict with the
rights mentioned in Art. 19 (1). Article 19 (1) does not purport to cover all aspects of
liberty or of personal liberty. In that Article only certain phases of liberty are dealt
with. "Personal liberty" would primarily mean liberty of the physical body. The rights
given under Art. 19 (1) do not directly come under that description. They are rights
which accompany the freedom or liberty of the person. By their very nature they are
freedoms of a person assumed to be in full possession of his personal liberty.

The court concluded:

It seems to me improper to read Art. 19 as dealing with the same subject as Art. 21.
Article 19 gives the rights specified therein only to the citizens of India while Art. 21
is applicable to all persons. Moreover, the protection given by Art. 21 is very general.
… In my opinion, therefore, Art. 19 should be read as a separate complete Article.

Dissenting View: Justice Fazl Ali

Justice Fazl Ali dissented. The dissent adopted the view that the fundamental
rights are not isolated and separate but protect a common thread of liberty and
freedom. He noted:

To my mind, the scheme of the Chapter dealing with the fundamental rights does
not contemplate what is attributed to it, namely, that each article is a code by itself
and is independent of the others. In my opinion, it cannot be said that Articles
19,20, 21 and 22 do not to some extent overlap each other. The case of a person
who is convicted of an offence will come under Articles 20 and 21 and also under
Article 22 so far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with Article 22, also amounts to deprivation of
personal liberty which is referred to in Article 21, and is a violation of the right of
freedom of movement dealt with in Article 19(1)(d)... It seems clear that the
addition of the word "personal" before "liberty" in Article 21 cannot change the
meaning of the words used in Article 19, nor can it put a matter which is
inseparably bound up with personal liberty beyond its place.

20
The majority was to see each article as a code in itself and only one article would
apply in judging the constitutional validity of a law.

21
 M. P. Sharma Case

The central government ordered an investigation into the affairs of a company, on

the grounds that the company management had embezzled funds and concealed
its true affairs from the shareholders. 9 Offences were registered and search
warrants issued against the company. The company challenged that the search
warrant violated its fundamental rights. Article 20(3) reads: ‘No person accused of
any offence shall be compelled to be a witness against himself.’ The company
claimed that the search by the government violated this right. The court noted:

...there is no basis in the Indian law for the assumption that a search or seizure of a
thing or document is in itself to be treated as compelled production of the same.
Indeed a little consideration will show that the two are essentially different matters
for the purpose relevant to the present discussion. A notice to produce is addressed
to the party concerned and his production in compliance therewith constitutes a
testimonial act by him within the meaning of Article 20(3) as above explained. But
a search warrant is addressed to an officer of the Government, generally a police
officer. Neither the search nor the seizure are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are,
therefore, not his testimonial acts in any sense.

The fourth amendment of the US Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.

Reliance was placed on a judgment Boyd v. United States, 116 US 616 (1886) of
the US Supreme Court holding that obtaining incriminating evidence by an illegal
search and seizure violates the Fourth and Fifth Amendments of the American
Constitution. The Supreme Court noted:

A power of search and seizure is in any system of jurisprudence an overriding

power of the State for the protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process of strained construction.
Nor is it legitimate to assume that the constitutional protection under Article 20(3)
would be defeated by the statutory provisions for searches.

9
AIR 1954 SC 300
22
 The Kharak Singh Case

Kharak Singh was accused of dacoity in 1941 but was released as there was no
evidence against him.10 Following this, the police opened a "history sheet" on him.
The Indian Police Act and the regulations created under it gave wide powers to the
government to keep track of the movement of a history sheeter, make visits at any
time and search premises. The police was keeping track of who came to visit him,
wake him up at night and search his premises. Kharak Singh challenged the Act and
regulations which gave these powers to the police under article 19 and 21 of the
constitution. It was a fractured judgement. Justice Ayyangar gave the majority
judgement. He applied the Gopalan principle of treating each article as an isolated
code. Kharak Singh argued that constant watch and midnight knock impeded his free
movement and thus, violated Article 19(1)(d). Justice Ayyangar noted:

… the "freedom" here guaranteed is a right "to move freely" throughout the territory
of India. … the right of "move" denotes nothing more than a right of locomotion, and
that in the context the adverb "freely" would only connote that the freedom to move is
without restriction and is absolute, i.e., to move wherever one likes, whenever one
likes and however one likes subject to any valid law enacted or made under cl. (5).

Justice Ayyangar, thus, constructing that Art 19(1)(d) was limited to bodily freedom
to be able to move around. The court continued:

It is manifest that by the knock at the door, or by the man being roused form his sleep,
his locomotion is not impeded or prejudiced in any manner. … we are clear that the
freedom guaranteed by Art. 19 (1)(d) has reference to something tangible and
physical rather and not to the imponderable effect on the mind of a person which
might guide his action in the matter of his movement or locomotion.

Thus, the court found article 19 to be inapplicable.

The judge having concluded there was no remedy under Art 19(1)(d) moved to
analyse Art 21. The judge noted the article is modelled on the 5 th and 14th
Amendments to the US Constitution which reads: ‘No person......shall be deprived of
life, liberty or property without due process of law.’ Field, J. in Munn v. Illinois, (1876)
94 US 113 observed:

"By the term 'life' as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all these limits and faculties by which
life is enjoyed. The provision equally prohibits the mutilation of the body or
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. …By
the term liberty, as used in the provision something more is meant than mere freedom
from physical restraint or the bounds of a prison.

10
AIR 1963 SC 1295
23
The court noted that the term used in Art 21 was ‘personal liberty’ and ‘therefore its
content is narrower.’ The court based the reason for this in the Gopalan case. It
noted:

But the qualifying adjective has been employed in order to avoid overlapping between
those elements or incidents of "liberty" like freedom of speech, or freedom of
movement etc. already dealt with in Art. 19 (1) and the "liberty" guaranteed by Art.
21 …

Thus, the schema proposed by the judge in the present case was Art 21 admits of
the liberties not already covered by Art 19. Further, if it is covered by Art 19, it would
not fall under Art 21. Article 19(d) was already constructed to be in a narrow physical
sense of locomotion. Art 21 had to admit of all other forms. The court noted:

The right to move about being excluded its narrowest interpretation would be that it
comprehends, nothing more than freedom from physical restraint or freedom from
confinement within the bounds of a prison; in other words, freedom from arrest and
detention, from false imprisonment or wrongful confinement. We feel unable to hold
that the term was intended to bear only this narrow interpretation but on the other
hand consider that "personal liberty" is used in the Article as a compendious term to
include within itself all the varieties of rights which go to make up the "personal
liberties" of man other than those dealt with in the several clauses of Art. 19 (1). In
other words, while Art.19 (l) deals with particular species or attributes of that
freedom, "personal liberty" in Art. 21 takes in and comprises the residue.

The court continued:

Is then the word 'personal liberty' to be construed as excluding from its purview an
invasion on the 'part of the police of the sanctity of a man's home and an intrusion into
his personal security and his right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal?

The answer to this was certainly yes. Midnight knock attracted article 21. As the
regulation was not based on any law, the court declared it to be unconstitutional.
However, merely keeping a watch was a different thing all together. The court noted:

Having given the matter our best consideration we are clearly of the opinion that the
freedom guaranteed by Art. 19(1) (d) is not infringed by a watch being kept over the
movements of the suspect. Nor do we consider that Art. 21 has any relevance in the
context as was sought to be suggested by learned counsel for the petitioner. As
already pointed out, the right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the movements of an individual
which is merely a manner in which privacy is invaded is not an infringement of
fundamental right guaranteed by part III.

Two of the judges took dissenting position. Justice Subba Rao gave the dissenting
view. Subba Rao maintained that even the surveillance on Kharak Singh was
unconstitutional. Referring to Article 19 and 21, he noted:

24
 Both of them are distinct fundamental rights. No doubt the expression "personal
liberty" is a comprehensive one and the right to move freely is an attribute of personal
liberty. It is said that the freedom to move freely is carved out of personal liberty and,
therefore, the expression "personal liberty" in Art. 21 excludes that attribute. In our
view, this is not a correct approach. Both are independent fundamental rights, though
there is overlapping. There is no question of one being carved out of another. The
fundamental right of life and personal liberty have many attributes and some of them
are found in Art. 19. If a person's fundamental right under Art. 21 is infringed the
State can rely upon a law to sustain the action; but that cannot be a complete answer
unless the said law satisfies the test laid down in Art. 19 (2) so far as the attributes
covered by Art. 19 (1) are concerned. In other words, the State must satisfy that both
the fundamental rights are not infringed by showing that there is a law and that it does
amount to a reasonable restriction within the meaning of Art. 19 (2) of the
Constitution.

As there was no law to support the regulation, allowing the police to do surveillance,
Kharak Singh, the judges reason ‘can legitimately plead that his fundamental rights
both under Art. 19 (1) (d) and Art. 21 are infringed by the State.’ Justice Rao
explored the scope of Article 21:

Now let us consider the scope of Art. 21. The expression "life" used in that Article
cannot be confined only to the taking away of life; i.e., causing death. … The
expression "liberty" is given a very wide meaning in America. It takes in all the
freedoms. …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.

Referring to the US Supreme Court judgements, the court noted:

In an uncivilized society where there are no inhibitions, only physical restraints may
detract from personal liberty, but as civilization advances the psychological restraints
are more effective than physical ones. The scientific methods used to condition a
man's mind are in a real sense physical restraints, for they engender physical fear
channelling one's actions through anticipated and expected grooves. So also creation
of conditions which necessarily engender inhibitions and fear complexes can be
described as physical restraints. Further the right to personal liberty takes in not only a
right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but the said right is an essential
ingredient of personal liberty. 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, Frankfurter J., in (1948) 338 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. Art. 21 as a right of an

25
 individual to be free from restrictions or encroachments on his person, whether those
restrictions to encroachments are directly imposed or indirectly brought about by
calculated measures. If so understood, all the acts of surveillance under Regulation
236 infringe the fundamental right of the petitioner under Art. 21 of the Constitution.

The views of Justice Subba Rao being minority view, was not binding.
Scope of Article 14

Article 14 of the Constitution reads:

14. Equality before law. The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.

The first case before the Supreme Court on the right to equality was the Charanjit Lal
Case.11 The judges recognised that the Article was drawn from the equality clause in
the US Constitution. They found the best elaboration of the equality clause in the
following passage of Prof. Willis in his book ‘Constitutional Law’:

The guaranty of the equal protection of the laws means the protection of equal laws. It
forbids class legislation, but does not forbid classification which rests upon reasonable
grounds of distinction. It does not prohibit legislation, which is limited either in the
objects to whom it is directed or by the territory within which it is to operate. It
merely requires that all persons subjected to such legislation shall be treated alike
under like circumstances and conditions both in the privileges conferred and in the
liabilities imposed. The inhibition of the amendment was designed to prevent any
person or class of persons from being singled out as a special subject for
discriminating and hostile legislation. It does not take from the states the power to
classify either in the adoption of police laws, or tax laws, or eminent domain laws, but
permits to them the exercise of a wide scope of discretion, and nullifies what they do
only when it is without any reasonable basis. Mathematical nicety and perfect equality
are not required. Similarity, not identity of treatment, is enough. If any state of facts
can reasonably be conceived to sustain a classification, the existence of that state of
facts must be assumed. One who assails a classification must carry the burden of
showing that it does not rest upon any reasonable basis.

Justice Patanjali Shashtri, thus, explained the above passage and the scope of
article 14:

… equal protection of the laws cannot mean that all laws must be quite general in
their character and application. A Legislature empowered to make laws on a wide
range of subjects must of necessity have the power of making special laws to attain
particular objects and must, for that purpose, possess large powers of distinguishing
and classifying the persons or things to be brought under the operation of such laws,
provided the basis of such classification has a just and reasonable relation of the
object which the Legislature has in view. While, for instance, a classification in a law
regulating labour in mines or factories may be based on age or sex, it may not be
based on the colour of one's skin. It is also true that the class of persons to whom a
11
Charanjit Lal Chowdhury v. The Union of India, AIR 1951 SC 41
26
 law is made applicable may be large or small, and the degree of harm which has
prompted the enactment of a particular law is a matter within the discretion of the law
makers. It is not the province of the Court to canvass the legislative judgment in such
matters.

Justice Mukherjea explained in these words:

The Legislature undoubtedly has a wide field of choice in determining and classifying
the subject of its laws, and if the law deals alike with all of a certain class, it is
normally not obnoxious to the charge of denial of equal protection but the
classification should never be arbitrary. It must always rest upon some real and
substantial distinction bearing a reasonable and just relation to the things in respect to
which the classification is made; and classification made without any substantial basis
should be regarded as invalid.

Justice Fazl Ali noted:

There can be no doubt that Art. 14 provides one of the most valuable and important
guarantees in the Constitution which should not be allowed to be whittled down …
any classification which is arbitrary and which is made without any basis is no
classification and a proper classification must always rest upon some difference and
must bear a reasonable and just relation to the things in respect of which it is
proposed.

The judge noted that Article 14 was ‘as widely worded as, if not more’ than the
equality provision in the American Constitution. The judge noted the essence of
Article 14:

Article 14 is designed to protect all persons placed in similar circumstances against

legislative discrimination, and if the legislature takes care to reasonably classify
persons for legislative purposes and if it deals equally with all persons belonging to a
well-defined class, it is not open to the charge of denial of equal protection on the
ground that the law does not apply to other persons.

The case law on Article 14 quickly developed. In State of West Bengal v Anwar Ali
Sarkar12, Justice Fazl Ali noted the essence of Article 14:

Article 14 is designed to protect all persons placed in similar circumstances against

legislative discrimination, and if the legislature takes care to reasonably classify
persons for legislative purposes and if it deals equally with all persons belonging to a
well-defined class, it is not open to the charge of denial of equal protection on the
ground that the law does not apply to other persons.

The judge summarised the formulation on Article 14:

1. The presumption is always in favour of the constitutionality of an enactment, since

it must be assumed that the legislature understands and correctly appreciates the needs

12
State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
27
 of its own people, that its laws are directed to problems made manifest by experience
and its discriminations are based on adequate grounds.

2. The presumption may be rebutted in certain cases by showing that on the face of
the statute, there is no Classification at all and no difference peculiar to any individual
or Class and not applicable to any other individual or Class, and yet the law hits only
a particular individual or Class.

3. The principle of equality does not mean that every law must have universal
application for all persons who are not by nature, attainment or circumstances in the
same position, and the varying needs of different Classes of persons often require
separate treatment.

4. The principle does not take away from the State the power of Classifying persons
for legitimate purposes.

5. Every Classification is in some degree likely to produce some inequality, and mere
production of inequality is not enough.

6. If a law deals equally with members of a well defined Class, it is not obnoxious and
it is not open to the charge of denial of equal protection on the ground that it has no
application to other persons.

7. While reasonable Classification is permissible, such Classification must be based

upon some real and substantial distinction bearing a reasonable and must relation to
the object sought to be attained, and the Classification cannot be made arbitrarily and
without any substantial basis."

In Budhan Choudhry v. The State of Bihar13, the Supreme Court explained Article 14:

The provisions of Art. 14 of the Constitution have come up for decision before this
Court in a number of cases … It is, therefore, not necessary to enter upon any lengthy
discussion as to the meaning, scope and effect of the article in question. It is now well
established that while Art. 14 forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group and (ii)
that that differentia must have a rational relation to the object sought to be achieved
by the statute in question. The classification may be founded on different bases,
namely, geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification and the
object of the Act under consideration. It is also well established by the decisions of
this Court that Art. 14 condemns discrimination not only by a substantive law but by a
law of procedure.

We can now note the case facts or the context in which the application of Article 14
was claimed.

13
Budhan Choudhry v. The State of Bihar A I R 1955 S C 191
28
In the very first case before the Supreme Court, the Charanjit Lal Case, Sholapur
Spinning and Weaving Company was doing flourishing business. 14 It was one of the
largest producers of cotton textiles. However, disputes arose between the
management and the employees. The company was temporarily closed. Following
this, the government, by an ordinance, took over the control and management of the
company. Soon, the ordinance was replaced by an act of Parliament containing
similar provisions, the Sholapur Spinning and Weaving Company (Emergency
Provisions) Act, 1950. The claimed goal of the law was to keep up the production of
an essential commodity and to avert serious unemployment problem.

The act empowered the Government of India to take over the control and
management of the company and its properties and appointing directors. The
government appointed its directors and all the properties of the company passed into
the absolute power and control of the Central Government. The shareholders were
reduced to being mere onlookers. The business was conducted by the government.

A shareholder, Chiranjit Lal challenged the constitutional validity of the act on the
grounds of violation of Article 14. Chiranjit Lal claimed that the act treated him
differently from the shareholders of other companies, including even those engaged
in the production of essential commodities. Thus, the act denied Chiranjit Lal the
equal protection of the laws under article 14.

State of West Bengal v Anwar Ali Sarkar

The state of West Bengal first made the West Bengal Special Courts Ordinance,
1949 and later enacted it as the West Bengal Special Courts Act, 1950. 15 The Act
provided for ‘the speedier trial of certain offences’. It empowered the State
Government to constitute special Courts by notification in the official gazette. Section
5 of the Act provided:

5 (1) A Special Court shall try such offences or classes of offences or cases or classes
of cases, as the State Government may by general or special order in writing, direct.

(2) No direction shall be made under sub-s. (1) for the trial of an offence for which an
accused person was being tried at the commencement of this Act before any Court
but, save as aforesaid, such direction may be made in respect of an offence, whether
such offence was committed before or after the commencement of this Act.

What was ‘special’ about the court was it provided alternate procedure for trial. The
procedure was a departure from the established procedure for criminal trials under
the Code of Criminal Procedure. It provided for trial without jury and restrictions on
the court granting adjournments. Anwar Ali Sarkar and 49 others were charged with
conducting raid as an armed gang on a factory. The case was sent to the special
court by the state government under Section 5. The special court convicted them.
They challenged the constitutional validity of the act as violative of article 14.

The court noted on the West Bengal Special Courts Act, 1950 Act:

14
Charanjit Lal Chowdhury v. The Union of India, AIR 1951 SC 41
15
State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
29
 The impugned Act has completely ignored the principle of classification followed in
the Code and it proceeds to lay down a new procedure without making any attempt to
particularize or classify the offences or cases to which it is to apply. Indeed, S. 5 of
the act, which is the most vital section, barely states that the 'Special Court shall try
such offences or classes of offences or cases or classes of cases, as the State
Government may, by general or special order in writing, direct".

The court further noted:

The second point to be noted is that in consequence of the Act, two procedures, one
laid down in the Code and the other laid down in the Act, exist side by side in the area
to which the Act applies, and hence the provisions of the Act are apt to give rise to
certain anomalous results, some of which may be stated as follows :-

1. A grave offence may be tried according to the procedure laid down in the Act,
while a less grave offence may be tried according to the procedure laid down in the
Code.

2. An accused person charged with a particular offence may be tried under the Act
while another accused person charged with the same offence may be tried under the
Code.

3. Certain offences belonging to a particular group or category of offences may be

tried under the Act whereas other offences belonging to the same group or category
may be tried under the Code.

The Dalmia Case

The Parliament enacted the Commissions of Inquiry Act, 1952 which provided for
appointments of commissions of inquiry for any definite matter of public
importance.16 The government had the power to appoint commissions under the act.
The central government appointed a commission to investigate a large number of
companies promoted and controlled by Sarvashri Ramkrishna Dalmia, Jaidayal
Dalmia, Shanti Prasad Jain, Sriyans Prasad Jain and Shital Prasad Jain. The
government alleged several gross irregularities including mutualisation of
subscribers moneys and funds. Each of the persons challenged the constitution of
the commission. The cases, as they had a common cause, got clubbed together and
taken up by the Supreme Court. The main argument of the parties was that the Act
and the notification constituting the commission was violative of Article 14, the right
to equality.

16
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538
30
Right to Equality

31
 E. P. Royappa v. State of T.N.

E. P. Royappa was in the Indian administrative service. 17 He was officiating as the

Chief Secretary of the state. After six months, he was posted out as Officer on
Special Duty. An officer junior to him was brought in as the Chief Secretary and
confirmed in the position. As a result, Royappa could not get the position of Chief
Secretary. Royyapa challenged the decision of the government on the grounds of
violation of Article 14.

Justice Bhagwati, delivering the judgement for himself, Justice Chandrachud and
Justice Krishna Iyer noted:

Article 16 embodies the fundamental guarantee that there shall be equality of

opportunity for all citizens in matters relating to employment or appointment to any
office under the State. Though enacted as a distinct and independent fundamental
right because of its great importance as a principle ensuring equality of opportunity in
public employment which is so vital to the building up of the new classless egalitarian
society envisaged in the Constitution, Art. 16 is only an instance of the application of
the concept of equality enshrined in Article 14. In other words, Art 14 is the genus
while Art. 16 is a species. Article 16 gives effect to the doctrine of equality in all
matters relating to public employment.

Justice Bhagwati continued to elaborate on the scope of equality:

The basic principle which, therefore, informs both Arts. 14 and 16 is equality and
inhibition against discrimination. Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the words of Bose, J., "a way of
life'', and it must not be subjected to a narrow pedantic or lexicographic approach. We
cannot countenance any attempt to truncate its all embracing scope and meaning, for
to do so would be to violate its activist magnitude. Equality is a dynamic concept with
many aspects and dimensions and it cannot be "cribbed, cabined and confined'' within
traditional and doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative of Article
14 and if it affects any matter relating to public employment, it is also violative of Art.
16.

The judge continued to elaborate on fairness:

Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and
equality of treatment. They require that State action must be based on valid relevant
principles applicable alike to all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that would be denial of equality.
Where the operative reasons for State action, as distinguished from motive inducing
from the antechamber of the mind, is not legitimate and relevant but is extraneous and
outside the area of permissible considerations, it would amount to mala fide exercise
17
E. P. Royappa v. State of T.N., AIR 1974 SC 555
32
 of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating from the same vice: in fact the
latter comprehends the former. Both are inhibited by Arts. 14 and 16.

The court concluded:

It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not
limited to cases where the public servant affected has a right to a post. Even if a
public servant is in an officiating position, he can complain of violation of Arts. 14
and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise
of power by the State machine. It is, therefore, no answer to the charge of
infringement of articles 14 and 16 to say that the petitioner had no right to the post of
Chief Secretary but was merely officiating in that post. That might have some
relevance to Art. 311 but not to Articles 14 and 16. We must, therefore, proceed to
consider whether the transfer of the petitioner first to the post of Deputy Chairman
and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide
exercise of power. What was the operative reason for such transfer: was it the
exigencies of public administration or extra administrative considerations having no
relevance to the question of transfer? Was the transfer to the post of Deputy Chairman
or Officer on Special Duty so irrational or unjust that it could not have been made by
any reasonably administration except for collaterial reasons? These are the questions
which call for our consideration.

The court, appraising the nature of the post and the facts, concluded:

But equally it is not possible for us to hold it established on the material on record that
this post was inferior in status and responsibility to the post of Chief Secretary,
though prima facie it does appear to be so. We cannot, therefore, say that the
petitioner was arbitrarily or unfairly treated or that equality was denied to him when
he was transferred from the post of Chief Secretary and in his place Sabanayagam his
junior, was promoted and confirmed. The challenge based on Arts. 14 and 16 must
therefore fail.

33
 Right to Life: The Maneka Gandhi Case

Maneka Gandhi received a letter from the Regional Passport Officer, Delhi, in June,
1976 impounding her passport. She asked for the reasons for the impounding but
none came from the government. Not incidentally, she was the daughter-in-law of
Indira Gandhi, who had just lost the general elections to the coalition which had
opposed her imposition of the Emergency. Maneka Gandhi challenged the
constitutional validity of the government’s action. The Supreme Court judgement
became a landmark in the unfolding of the Indian constitution. 18 The judgement
consolidated reading of the fundamental rights organically as interrelationships; and
expanded the scope of the right to equality and the right to life. The case explores
the Supreme Court judgement.

Impounding of Passport

Maneka Gandhi received a letter from the Regional Passport Officer, Delhi,
intimating her that the Government of India had decided to impound her passport.
The letter cited that the impounding was done under S. 10(3)(C) of the Passport Act,
1967 in ‘public interest’. She was required to surrender the passport within seven
days. She immediately wrote to the Regional Passport Officer requesting for a copy
of the statement of reasons for making the order. The officer replied refusing to give
her the reasons for impounding the passport ‘in the interest of the general public’.
The communications will become intelligible in the light of the provisions of the
Passport Act, 1967.

The Passport Act, 1967 governed the issuance of passport to India citizens for
foreign travel. A citizen could get a passport by making an application. The
government could refuse a passport to an applicant only on certain grounds. The
grounds for refusal of a passport had to be recorded and communicated to the
applicant. The government had the power to revoke a passport it had issued. The
government could revoke an issued passport only on certain limited grounds.
Section 10(3)(c) of the Act provided the grounds for revocation:

(c) if the passport authority deems it necessary so to do in the interest of the

Sovereignty and Integrity of India, the security of India, friendly relations of India
with any foreign country, or in the interests of the general public;

Section 10(5) required the passport authority, impounding a passport, to record in

writing ‘a brief statement of the reasons for making such order.’ Further, the
government had to furnish a copy of the statement to the passport holder on
demand. The only ground for refusal was if the passport authority was ‘of the opinion
that it will not be in the interests of the sovereignty and integrity of India, the security
of India, friendly relations of India with any foreign country or in the interests of the
general public to furnish such a copy.’

This explained the communication between Maneka Gandhi and the passport officer.
The passport officer not only impounded her passport but also refused to give her

18
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
34
the reasons for it on the grounds that, in his opinion, it was not in the ‘interests of the
general public’ to do so. Maneka Gandhi challenged the constitutional validity of the
provisions of the Passport Act and the order made by the government under it. She
claimed the law was vague and arbitrary and violated the right to life and the
freedom to freely move. We will state her claims with reference to the constitutional
provisions.

Constitutional Provisions

The chapter on the fundamental rights has different headings under which the
fundamental rights are clustered. Under the heading ‘right to equality’ is Article 14,
‘Equality Before Law’. The article reads:

14. Equality Before Law- The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.

The next heading is ‘right to freedom’. Under this, Article 19 provides:

19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
*****
(g) to practise any profession, or to carry on any occupation, trade or business.

The freedoms are not absolute and unlimited. Each of the above freedom is limited
by a separate subsequent clause. The limitations on the freedom are in Articles
19(2) to 19(6). Article 19(1)(a) is constrained by Article 19(2), Article 19(1)(b) is
constrained by Article 19(3) and so forth. To illustrate, Article 19(2), restricting the
freedom of speech and expression reads:

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.

Continuing with the head of right to freedom, Articles 20-22 provide as follows:

20. Protection in respect of conviction for offences. (1) No person shall be convicted
of any offence except for violation of a law in force at the time …

21. Protection of life and personal liberty.- No person shall be deprived of his life or
personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases. (1) No person who is
arrested shall be detained in custody without being informed, as soon as may be, of

35
 the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice….

Maneka Gandhi contended that Section 10(3) (c) of the Passport Act gave the
powers to the government to impound a passport, without any hearing, by merely
claiming it to be ‘in the interests of the general public’. The power was vague and
arbitrary and violative of the right to equality under 14. A person going abroad would
interact and exchange with others. A passport holder could be going abroad to
pursue a business or profession. The impounding of her passport violated the right to
freedom in Article 19. More centrally, the impounding has constrained and confined
her from going abroad. Thus, it has deprived her of personal liberty and was violative
of Article 21.

The Supreme Court’s judgement in the case brought and integrated several of the
prior judgements. We will develop the prior cases as the building blocks and explore
the integration. The first case we take up is the Gopalan Case.

The Gopalan Principle: FRs are Watertight Compartments

The Gopalan Case19 was one of the very early cases before the Supreme Court. The
State of Madras, following the Preventive Detention Act, 1950, had arrested Gopalan
and taken into custody. Gopalan challenged the constitutional validity of the Act. The
challenge was under two grounds, violation of Article 22 and 19. Article 22 deals with
arrest and detention and got attracted. Article 22 requires the state to follow certain
measures and restraints for an arrest or detention to be valid. Gopalan claimed the
protection of Article 22. In addition, he brought out, that a person who was arrested
lost his freedom to move freely. Thus, the detention also attracted Article 19(1)(d),
the freedom ‘to move freely throughout the territory of India’. The implication was the
act must comply not only with Article 22 but also Article 19. Article 19(5) provides the
balancing power to the state against the freedom of free movement, which is, the
state can only impose ‘reasonable restriction’ in the ‘interest of general public’. The
court noted:

Reading Article 19 … it appears to me that the concept of the right to move freely
throughout the territory of India is an entirely different concept from the right to
"personal liberty" contemplated by Article 21. "Personal liberty" covers many more
rights in one sense and has a restricted meaning in another sense. For instance,
while the right to move or reside may be covered by the expression, "personal
liberty" the right to freedom of speech … cannot be considered a part of the
personal liberty of a citizen. They form part of the liberty of a citizen but the
limitation imposed by the word "personal" leads me to believe that those rights are
not covered by the expression personal liberty. So read there is no conflict between
Articles 19 and 21. The contents and subject-matters of Articles 19 and 21 are thus
not the same and they proceed to deal with the rights covered by their respective
words from totally different angles.

The court elaborated and illustrated Article 21 and 19:

19
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
36
 Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or
sleep when one likes or to work or not to work when one pleases and several such
rights sought to be protected by the expression "personal liberty" in Art. 21, is quite
different from restriction (which is only a partial control) of the right to move freely
(which is relatively a minor right of a citizen) as safeguarded by Art. 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free
movement in the territory of India. … I am unable to accept the contention that the
word 'deprivation' includes within its scope 'restriction' when interpreting Art. 21.
Article 22 envisages the law of preventive detention. … Therefore, when the subject
of preventive detention is specifically dealt with in [Article 22] … I do not think it is
proper to consider a legislation permitting preventive detention as in conflict with the
rights mentioned in Art. 19 (1). Article 19 (1) does not purport to cover all aspects of
liberty or of personal liberty. In that Article only certain phases of liberty are dealt
with. "Personal liberty" would primarily mean liberty of the physical body. The rights
given under Art. 19 (1) do not directly come under that description. They are rights
which accompany the freedom or liberty of the person. By their very nature they are
freedoms of a person assumed to be in full possession of his personal liberty.

The court concluded:

It seems to me improper to read Art. 19 as dealing with the same subject as Art. 21.
Article 19 gives the rights specified therein only to the citizens of India while Art. 21
is applicable to all persons. Moreover, the protection given by Art. 21 is very general.
… In my opinion, therefore, Art. 19 should be read as a separate complete Article.

The court, thus, formulated that the articles of the constitution are exclusive
separate codes. The principle found application in the Kharak Singh Case. 20
Kharak Singh was accused of dacoity but released as there was no evidence
against him. The police opened a history sheet on him and conducted surveillance,
including midnight knock on the door. Kharak Singh challenged the constitutional
validity of the law and police action on the grounds of violation of personal liberty
under Article 21 and freedom to move freely under Article 19(1)(d). The court,
following the Gopalan principle, noted:

… personal liberty, is used in the article as a compendious term to include within

itself all the varieties of rights which go to make up the 'personal liberties' of man
other than those dealt with in the several clauses of Art. 19 (1). In other words, while
Art. 19 (1) deals with particular species or attributes of that freedom, 'personal liberty'
in Art. 21 takes in and comprises the residue". … it is unnecessary to pause to
consider either the precise relationship between the "liberties" in Art. 19(1) (a) and (d)
on the one hand and that in Art. 21 on the other, or the content and significance of the
words "procedure established by law" in the latter Article, both of which were the
subject of elaborate consideration by this Court in A.K. Gopalan v. state of Mardas,
1950 SCR 88: (AIR 1950 SC 27).

The Cooper case revisited the Gopalan Principle of reading the constitutional
provisions.

The Cooper Case: Overturning of the Gopalan Principle

20
Kharak Singh v. State of U. P., AIR 1963 SC 1295.
37
The Cooper Case21 was a larger bench of eleven judges and revisited the question
of interrelationships between the articles in the chapter on the fundamental rights.
The court noted:

...it is necessary to bear in mind the enunciation of the guarantee of fundamental

rights which has taken different forms. In some cases it is an express declaration of
a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure
protection of individual rights they take specific forms of restrictions on State
action-legislative or executive-Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some
others, it takes the form of a positive declaration and simultaneously enunciates the
restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an
implication from the delimitation of the authority of the State, e.g. Articles 31(1)
and 31(2); in still others, it takes the form of a general prohibition against the State
as well as others: Articles 17, 23 and 24.

From the diverse range and spread of the fundament rights, the court concluded:

The enunciation of rights either express or by implication does not follow a uniform
pattern. But one thread runs through them: they seek to protect the rights of the
individual or groups of individuals against infringement of those rights within
specific limits. Part III of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection of those rights
in their allotted fields: they do not attempt to enunciate distinct rights.

A subsequent judgement, Shambhu Nath Sarkar v. State of West Bengal 22,

explained the Cooper Case. It noted:

In Gopalan's case the majority court had held that Article 22 was a self-contained
Code and therefore a law of preventive detention did not have to satisfy the
requirement of Arts. 19, 14 and 21. The view of Fazal Ali, J. on the other hand, was
that preventive detention was a direct breach of the right under Article 19 (1) (d) and
that a law providing for preventive detention had to be subject to such judicial review
as is obtained under clause (5) of that Article. In R. C. Cooper v. Union of India the
aforesaid premise of the majority in Gopalan's case was disapproved and therefore it
no longer holds the field. Though Cooper's case dealt with the inter-relationship of
Article 19 and Article 31, the basic approach to construing the fundamental rights
guaranteed in the different provisions of the Constitution adopted in this case held the
major premise of the majority in Gopalan's case to be incorrect.

Integration: The Current Case

In the current case, justice Bhagwati for the court integrated the position on the
reading of the articles. He noted:

There can be no doubt that in view of the decision of this Court in R. C. Cooper v. …
a decision given by the full Court, the fundamental rights conferred by Part III are not
distinct and mutually exclusive rights. Each freedom has different dimensions and
21
R. C. Cooper v. Union of India, AIR 1970 SC 564.
22
Shambhu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425.
38
 merely because the limits of interference with one freedom are satisfied, the law is not
freed from the necessity to meet the challenge of another guaranteed freedom. The
decision in A. K. Gopalan's case gave rise to the theory that the freedoms under Arts.
19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection
of distinct rights, but this theory was overturned in R. C. Cooper's case where Shah,
J., speaking on behalf of the majority pointed out that "Part III of the Constitution
weaves a pattern of guarantees on the texture of basic human rights. The guarantees
delimit the protection of those rights in their allotted fields: they do not attempt to
enunciate distinct rights". The conclusion was summarised in these terms: "In our
judgment, the assumption in A. K. Gopalan's case that certain articles in the
Constitution exclusively deal with specific matters - cannot be accepted as correct.

Thus, the articles in the chapter on the fundamental rights have to be read together
and given effect collectively, not separately. The court then moved to explore the
question of violation of Article 21.

‘Personal Liberty’: Satwant Singh Sawhney Case

Article 21 provides that that no person can be deprived of his ‘life or personal liberty’
except according to ‘procedure established by law.’ In giving meaning to the article,
the first question was on the scope of ‘life and personal liberty’. In the Gopalan Case,
the court had interpreted that ‘Personal liberty’ in Article 21 ‘would primarily mean
liberty of the physical body.’ But the judgement of the Supreme Court in the Satwant
Singh Case23 expanded it. Satwant Singh Sawhney was a business man engaged in
import and export of automobile parts and engineering goods. He held a passport
and travelled abroad on business. The government of India wrote a letter to him
withdrawing his passport. He challenged the constitutional validity of the order on the
grounds that it violated his personal liberty under article 21.

In the Gopalan case, the court had examined article 21 in relation to article 19(1)(d),
freedom of movement within India. The court had noted that Article 19 protected
specific personal liberty as independent rights and Article 21 was ‘a compendious
term including within its meaning all the varieties of rights which go to make up the
personal liberties of men.’ This was followed in the Kharak Singh Case, where the
court had noted:

We … consider that "personal liberty" is used in the Article as a compendious term to

include within itself all the varieties of rights which go to make up the "personal
liberties" of man other than those dealt with in the several clauses of Art. 19(1). In
other words, while Art. 19 (1) deals with particular species or attributes of that
freedom, "personal liberty" in Art. 21 takes in and comprises the residue."

Following this, the Supreme Court in the Satwant Singh Case contrasted that the
general right of locomotion was covered under Article 21 while Article 19(1)(d) was to
secure a specific and special right of the Indian citizen to move freely throughout the
territories of India as a protection against provincialism. The court was of the view
that ‘personal liberty in Art 21 is a more comprehensive concept and has a much

Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi,

23

AIR 1967 SC 1836.

39
wider connotation than the right conferred under Art. 19 (1) (d).’ The court
concluded:

... "personal liberty" in Art. 21 only excludes the ingredients of "liberty" enshrined in
Art. 19 of the Constitution. In other words, the expression "personal liberty" in Art. 21
takes in the right of locomotion and to travel abroad, but the right to move throughout
the territories of India is not covered by it inasmuch as it is specially provided in Art.
19. … It follows that under Art. 21 of the Constitution no person can be deprived of
his right to travel except according to procedure established by law.

The Satwant Singh Case had already established that travel abroad was covered
under the right to ‘personal liberty’. But the right was not an absolute one. The state
could take away personal liberty by following a ‘procedure established by law’. The
court in the current case moved to the question.

‘Procedure established by law’: The Current Case

In the current case, the court noted on the scope of ‘personal liberty’ and limitations
on it:

Now, it has been held by this Court in Satwant Singh's case that 'personal liberty'
within the meaning of Article 21 includes within its ambit the right to go abroad and
consequently no person can be deprived of this right except according to procedure
prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law
regulating the right of a person to go abroad and that was the reason why the order of
the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case
was struck down as invalid. It will be seen at once from the language of Article 21
that the protection it secures is a limited one. It safeguards the right to go abroad
against executive interference which is not supported by law; and law here means
'enacted law' or 'State law.' … Thus, no person can be deprived of his right to go
abroad unless there is a law made by the State prescribing the procedure for so
depriving him and the deprivation is effected strictly in accordance with such
procedure.

On the ‘procedure required by law’, the court posed:

Does Art. 21 merely require that there must be some semblance of procedure,
howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of
his personal liberty or that the procedure must satisfy certain requisites in the sense
that it must be fair and reasonable?

The court answered it:

Obviously, the procedure cannot be arbitrary, unfair or unreasonable. … any

procedure howsoever arbitrary, oppressive or unjust [cannot] be prescribed by the
law.

The basis for the ready answer was that following the overruling of the Gopalan
Principle, the articles were to be read together. The court noted:

40
 The law must, therefore, now be taken to be well settled that Art. 21 does not exclude
Article 19 and that even if there is a law prescribing a procedure for depriving a
person of 'personal liberty' and there is consequently no infringement of the
fundamental right conferred by Article 21, such law, in so far as it abridges or takes
away any fundamental right under Article 19 would have to meet the challenge of that
article. This proposition can no longer be disputed … Now, if a law depriving a
person of 'personal liberty' and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation, exhypothesi
it must also be liable to be tested with reference to Article 14.

The court noted that in the Gopalan case, the court made a clear and categorical
statement that Article 21 ‘presupposes that the law is a valid and binding law … and
does not infringe any of the fundamental rights which the Constitution provides for’
including Article 14. Thus, the procedure established by law under Article 21 must
answer the requirement of the equality clause under Article 14. The court then
moved the explore Article 14, right to equality.

Right to Equality

The court noted on Article 14:

Now, the question immediately arises as to what is the requirement of Article 14:
What is the content and reach of the great equalising principle enunciated in this
article? There can be no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our democratic republic.
And, therefore, it must not be subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be imprisoned within
traditional and doctrinaire limits.

The court quoted from an earlier judgement, E. P. Royappa v. State of Tamil Nadu: 24

… equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn

enemies; one belongs to the rule of law in a republic, while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore
violative of Article 14.

The court integrated it:

Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure contemplated by Article 21 must answer
the test of reasonableness in order to be in conformity with Article 14. It must be
'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would
be no procedure at all and the requirement of Article 21 would not be satisfied.
24
E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
41
Justice Chandrachud enunciated the principle in these words:

But the mere prescription of some kind of procedure cannot ever meet the mandate of
Article 21. The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary.

Justice Krishna Iyer formulated the principle as follows:

So I am convinced that to frustrate Article 21 by relying on any formal adjectival

statute, however, flimsy or fantastic its provisions be, is to rob what the constitution
treasures. ...To sum up, "procedure" in Article 21 means fair, not formal procedure.
"Law" is reasonable law, not any enacted piece."

The court then turned to apply the principles to the case before it.

Natural Justice: Right to be Heard

The questions the court asked was, did the procedure prescribed by the Passports
Act, 1967 for impounding a Passport meet the test of this requirement? Was the
procedure 'right or fair or just'? The argument of Maneka Gandhi was that
impounding the passport of a person is a serious matter and could not be done
without observing the principle of natural justice of audi alteram partem, the person
must be heard. The court agreed with it. It noted:

The principle of audi alteram partem which mandates that no one shall be condemned
unheard, is part of the rules of natural justice. … Natural justice is a great humanising
principle intended to invest law with fairness and to secure justice and over the years
it has grown into a widely pervasive rule affecting large areas of administrative
action.

Reviewing the trends in the common law countries, the court concluded that it was a
well settled law that in quasi-judicial and administrative proceedings, the doctrine of
natural justice must be followed. The court moved to apply the principle to the case.

Conclusion

On applying the principle, on the details of the Passport Act and appraisal of the
stages in impounding of passport, and the specifics of the case, relief did not come
to Maneka Gandhi. The court concluded that not disclosing the grounds of
impounding passport, contrasted with the public interest associated with it, need not
be arbitrary. The judgement, however, became foundational for several aspects of
constitutional law. The subsequent judgements would apply and develop it. Some of
the features of the judgement included, the articles in the chapter on fundamental
right were to be read in an inter-related manner and not as isolated codes. ‘Person
liberty’ was not confined to be in a physical and bodily sense but had a broader
meaning. The ‘procedure established by law’ for depriving a person of his ‘life or
personal liberty’ has to be fair, just and reasonable. The essence of the right to
equality in article 14 was that law cannot be arbitrary.

42
The definition of state

43
 Rajasthan State Electricity Board, Jaipur v. Mohan Lal

The State of Rajasthan had an Electrical and Mechanical Department. 25 The

department managed the supply of electricity, maintenance of the distribution
network and realisation of the charges from the customers. The state legislature
enacted the Electricity Supply Act, 1948. The Act provided for the creation of a
distinct entity, the Rajasthan State Electricity Board, for doing the work the
department was doing in relation to electricity. Following the Act, the Rajasthan State
Electricity Board was created in 1957. The Board was a distinct entity, holding its
own property. It would sue in its name and be sued in its name. On the constitution
of the Board, the employees of the Department were provisionally transferred to it.
The Board was to frame grades for its employees and the service conditions. The
employees, who were provisionally transferred to the Board, were to exercise the
option of either accepting the grades of the Board or continue with the existing
grades of and service conditions. The Board, however, did not frame its own grades.
Everyone continued to be governed by the existing grades of the Department.
Employees were deputed to the Board and also reverted back to the Department. In
the course of the employees getting in and out of the Department and Board, some
got promoted from the grade of Foreman to Assistant Engineer while others with the
same seniority remained Foreman. The employees represented to the Board
demanding promotion like their co-workers. When denied, the employees
approached the High Court claiming that the Board was had violated their right to
equality under Article 14. The High Court accepted the Board was ‘other authorities’
and in violation of the right to equality. contention of the employees. The Board
moved the Supreme Court challenging the decision of the High Court.

The Board relied on the University of Madras Case, the Karnataka Engineering
College Case and the Punjab University to claim that the term ‘other authorities’ is to
be construed ‘ejusdem generic’. Thus constructed, the Board contended:

[It] cannot cover the Board which is a body corporate having a separate existence and
has been constituted primarily for the purpose of carrying on commercial activities.

The case was a five-judge bench. The judges concurred, however, Justice Bhargava
delivered the judgement for four of the judges while Justice Shah delivered his own
judgement. We will first explore the judgement of Justice Bhargava.

Justice Bhargava

The court turned to appraise the ejusdem generis rule and its application to the term
‘other authorities’. It quoted the following two passages on its meaning from standard
texts:

The ejusdem generis rule is one to be applied with caution and not pushed too far …
To invoke the application of the ejusdem generis rule there must be a distinct genus or
category. The specific words must apply not to different objects of a widely differing

25
Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857
44
 character but to something which can be called a class or kind of objects. Where this
is lacking, the rule cannot apply, but the mention of a single species does not
constitute a genus".26

'But the general word which follows particular and specific words of the same nature
as itself takes its meaning from them, and is presumed to be restricted to the same
genus as those words… Unless there is a genus or category, there is no room for the
application of the ejusdem generis doctrines. 27

The Supreme Court applied the rule:

In our opinion, the High Courts fell into an error in applying the principle of ejusdem
generis when interpreting the expression "other authorities,' in Art. 12 of the
Constitution, as they overlooked the basic principle of interpretation that, to invoke
the application of ejusdem generis rule, there must be a distinct genus or category
running through the bodies already named. …

In Art. 12 of the Constitution, the bodies specifically named are the Executive
Governments of the Union and the State, the Legislatures of the Union and the States,
and local authorities. We are unable to find any common genus running through these
named bodies, nor can these bodies be placed in one single category on any rational
basis. The doctrine of ejusdem generis could not, therefore, be applied to the
interpretation of the expression "other authorities" in this article.

The court noted that Webster's Third New International Dictionary defined the word
‘authority’ to mean 'a public administrative agency or corporation having quasi-
governmental powers and authorised to administer a revenue-producing public
enterprise.’ Following this, the court noted:

This dictionary meaning of the word "authority" is clearly wide enough to include all
bodies created by a statute on which powers are conferred to carry out governmental
or quasi-governmental functions. The expression "other authorities" is wide enough to
include within it every authority created by a statute and functioning within the
territory of India, or under the control of the Government of India, and we do not see
any reason to narrow down this meaning in the context in which the words "other
authorities" are used in Article 12 of the Constitution.

The Supreme Court found support in its earlier judgement in Smt. Ujjam Bai v. State
of Uttar Pradesh, (AIR 1962 SC 1621). The Supreme Court quoted from it:

"Again, Article 12 winds up the list of authorities falling within the definition by
referring to "other authorities" within the territory of India which cannot obviously be
read as ejusdem generis with either the Government and the Legislatures or local
authorities. The words are of wide amplitude and capable of comprehending every
authority created under a statute and functioning, within the territory of India or under
the control of the Government of India. There is no characterisation of the nature of
the "authority" in this residuary clause and consequently it must include every type of
authority set up under a statute for the purpose of administering laws enacted by the
26
Craies on Statute Law, 6th Edn., p. 181.
27
Maxwell on "Interpretation of Statutes" 11th Edn., pp. 326, 327.
45
 Parliament or by the State including those vested with the duty to make decisions in
order to implement those laws."

The Supreme Court applied the principles to decide whether the Board was ‘other
authorities’ or not.

These decisions of the Court support our view that the expression "other authorities"
in Art. 12 will include all constitutional or statutory authorities on whom powers are
conferred by law. It is not at all material that some of the powers conferred may be for
the purpose of carrying on commercial activities.

The court turned to the Constitutional provisions to bring that the state is mandated
to do business too. It noted:

Under the Constitution, the State is itself envisaged as having the right to carry on
trade or business as mentioned in Art. 19 (1) (g). In Part IV, the State has been given
the same meaning as in Art. 12 and one of Directive Principles laid down in Art. 46 is
that the State shall promote with special care the educational and economic interests
of the weaker sections of the people. The State, as defined in Art. 12, is thus
comprehended to include bodies created for the purpose of promoting the educational
and economic interests of the people. The State, as constituted by our Constitution, is
further specifically empowered under Art. 298 to carry on any trade or business.

The court, in this context, noted:

The circumstance that the Board under the Electricity Supply Act is required to carry
on some activities of the nature of trade or commerce does not, therefore, give any
indication that the Board must be excluded from the scope of the word "State" as used
in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which
clearly show that the powers conferred on the Board include power to give directions,
the disobedience of which is punishable as a criminal offence. In these,
circumstances, we do not consider it at all necessary to examine the cases cited by
[counsel for the Board] to urge before us that the Board cannot be held to be an agent
or instrument of the Government. The Board was clearly an authority to which the
provisions of Part III of the Constitution were applicable.

Justice Shah, agreed that the Board was state but differed on the principles. Let us,
first, however, analyse the judgement of Justice Bhargava. Justice Bhargava,
representing three other judges, took the view that the High Courts ‘fell into an error
in applying the principle of ejusdem generis when interpreting the expression "other
authorities’. Where the High Courts in error? The entries in Article 12 are:
Government of India, Parliament, Government of the States, Legislatures of the
States and local authorities. The High Courts had constructed the genus to be of
bodies with the capacity to make laws and enforce them. The ratio of Ujjam Bhai
case is that the Central Government or the State Government is ‘state’, whether it
does legislative, judicial or executive functions.

In any listing, the entries would be distinct and it would not declare the genus or the
class. The genus has to be constructed by looking at the features of the entries.
Further, the relevant features have to be constructed from the context. Article 12 has

46
to be read in the context of Article 13. Putting the two together, the entries are for
bodies which have the power to make laws and impose it on the subjects. We now
come to the term ‘other authorities’. The term ‘other’ refers to the entries preceding it.
Thus, the definition itself makes a genus called ‘authority’ comprising of Government
of India, Parliament, Government of the States, Legislatures of the States and local
authorities. The ‘other authorities’, thus, includes only the bodies which are
governmental with the capacity to make laws and impose them. The claim that there
is no genus does not appear to be the case. The judges rely on the passage from
the judgement of Justice Ayyangar. We have already noted that there is nothing
‘obvious’ about ‘other authorities’ not being ejusdem generis.

The difficulty the court experienced was the Board was a new phenomenon. It was
engaged in commercial functions. The State Government took up the commercial
function of distributing and selling electricity. It continued to be the government. It
became no less governmental when it took up commercial activity. The Board,
however, was created for the commercial activity itself. The difficulty was in
reconciling to this non-governmental activity of the body. The judgement leaves the
principle intact that a body need be performing governmental functions to be state.
Let us analysis the concluding part of the judgement of Justice Bhargava. The first
line reads: ‘… the expression "other authorities" in Art. 12 will include all
constitutional or statutory authorities on whom powers are conferred by law.’ The
lines brings out that a body created by an Act will be ‘other authorities’. The second
line elaborates it or qualifies it: ‘It is not at all material that some of the powers
conferred may be for the purpose of carrying on commercial activities.’ The line is
negatively worded. It is stating that if a governmental body takes up some functions
which are commercial, it continues to be governmental. It is not stating that a body
created by a statute which is mostly doing commercial activity can be ‘other
authorities’. The passage later substantiates that the Board is mainly governmental
which has taken up some commercial functions. The judgement notes the Board is
‘required to carry on some activities of the nature of trade or commerce’. This cannot
be the basis ‘that the Board must be excluded from the scope of the word "State" as
used in Art. 12.’ The judgement strengthens the governmental character of the Board
by highlighting that ‘the powers conferred on the Board include power to give
directions, the disobedience of which is punishable as a criminal offence.’ To
conclude, the court recognised that the Board had both the powers, to do
commercial activity, and make law and impose on others. It stated that the Board
does commercial activity should not disqualify it from being ‘other authorities’. On the
strength of its law making powers, it recognised the Board as ‘other authorities’. We
now come to the judgement of

Judgement of Justice Shah

Justice Shah agreed with the order passed by Justice Bhargava but gave a separate
judgement. He noted the wide commercial, managerial and sovereign powers of the
Board. Following this, he noted:

The Board is an authority invested by statute with certain sovereign power of the
State. It has the power … to make rules and regulations for carrying out the purposes
of the Act, and to issue directions under certain provisions of the Act and to enforce
compliance with those directions. The Board is also invested by statute with extensive

47
 powers of control over electricity undertakings. The power to make rules and
regulations and to administer the Act is in substance the sovereign power of the State
delegated to the Board. The Board is, in my judgment, "other authority" within the
meaning of Art. 12 of the Constitution.

The judge further noted:

I am unable, however, to agree that every constitutional or statutory authority on

whom powers are conferred by law is "other authority" within the meaning of Art. 12.
The expression "authority" in its etymological sense means a body invested with
power to command or give an ultimate decision, or enforce obedience, or having a
legal right to command and be obeyed.

The expression State is defined in Art. 12 for the purpose of Part III of the
Constitution. Article 13 prohibits the State from making any legislative or executive
direction which takes away or abridges the rights conferred by Part III and declares
any law or executive direction in contravention of the injunction void to the extent of
such contravention. In determining what the expression "other authority" in Art. 12
connotes, regard must be had not only to the sweep of fundamental rights over the
power of the authority, but also to the restrictions which may be imposed upon the
exercise of certain fundamental rights (e.g., those declared by Art. 19) by the
authority. Fundamental rights within their allotted fields transcend the legislative and
executive power of the sovereign authority. But some of the important fundamental
rights are liable to be circumscribed by the imposition of reasonable restrictions by
the State. The true content of the expression "other authority" in Art. 12 must be
determined in the light of this dual phase of fundamental rights. In considering
whether a statutory or constitutional body is an authority within the meaning of Art.
12, it would be necessary to bear in mind not only whether against the authority,
fundamental rights in terms absolute are intended to be enforced but also whether it
was intended by the Constitution-makers that the authority was invested with the
sovereign power to impose restrictions on very important and basic fundamental
freedoms.

In my judgment, authorities constitutional or statutory invested with power by law not

sharing the sovereign power do not fall within the expression "State" as defined in
Art. 12. Those authorities which are invested with sovereign power, i.e., power to
make rules or regulations and to administer or enforce them to the detriment of
citizens and others fall within the definition of "State" in Art. 12, and constitutional or
statutory bodies which do not share that sovereign power of the State are not in my
judgment, "State" within the meaning of Art. 12 of the Constitution.

48
 Sabhajit Tewary v. Union of India

Sabhajit Tewary was an employee of the Council of Scientific and Industrial

Research (CSIR).28 The employees who joined after him were given more
increments than him. He claimed this to be a violation of Article 14, right to equality.
CSIR is a society registered under the societies Act. It claimed that it was not ‘state’
within the meaning of Article 12. The Supreme Court was considering this question.

The Prime Minister of India was the ex-officio President of the Society. The
governing body was appointed by the government. The government could terminate
the membership of any governing body member. The governing body had the
management of all the affairs and funds of the society. The Governing Body had the
powers to make rules and bye-laws with the sanction of the Government of India.
The Department of Science and Technology was the supervisory body for the CSIR.
Following these connections with the government, it was claimed that the CSIR was
‘really an agency of the Government’. The Supreme Court noted:

This contention is unsound. The Society does not have a statutory character like the
Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial
Finance Corporation. It is a society incorporated in accordance with the provisions of
the Societies Registration Act. The, fact that the Prime Minister is the President or
that the Government appoints nominees to the Governing Body or that the
Government may terminate the membership will not establish anything more than the
fact that the Government takes special care that the promotion, guidance and co-
operation of scientific and industrial research … are carried out in a responsible
manner.

This Court has held in Praga Tools Corporation v. C. A. lmanual & Ors. [1969] 3
S.C.R. 773; Heavy Engineering Mazdoor Union v. The State of Bihar & Ors. [1969]
3 S.C.R. 995; S. I,. Agarwal v. General Manager Hindustan Steel Ltd. [1970] 3SC.R.
363 that the Praga Tools Corporation, Heavy Engineering and Hindustan Steel Ltd.
are all companies incorporated under the Companies Act and the employees of these
companies do not enjoy the protection available to Government servants as
contemplated in Article 311. The companies were held in these cases to have
independent existence of the Government and by the law relating to corporations.
These could not be held to be departments of the Government.

For these reasons we are of opinion that the Council of Scientific and Industrial
Research is not an authority within the meaning of Article 12 of the Constitution.

The CSIR decision was given the same day as the Sukhdev Case by the same
bench. This is the reason the bench noted that the CSIR was not a statutory body
like ONGC, LIC or IFC. Thus, the court was formulating that only a statutory body
could be ‘other authorities’. Thus judged, CSIR could not be ‘other authorities’. The
court connected it in another grid. It noted that companies controlled and managed
by the government were not treated as government employees for the constitutional

28
Sabhajit Tewary v. Union of India, AIR 1975 SC 1329
49
protection under Article 311. Thus, the case law converged that only statutory bodies
could be other authorities. Further, the statutory body should have some sovereign
functions to qualify to be an ‘authority’. We next move to the following case.

The case brought about a major shift in the scope of ‘other authorities’. It reasoned
that the modern state is a welfare state and takes up an array of activities. Therefore,
there should be no distinction between sovereign and non-sovereign functions. The
government is bound to the constitutional limitations irrespective of the activities it
takes. Following this, if it uses an instrumentality or agency to do the same activities,
the instrumentality or the agency should be subject to the same constitutional
limitations. Justice Mathew had rehearsed these arguments in Sukhdev Case. The
challenge before the court was to take his view over of the others and put it as the
central thesis. We would explore the argument but as much, we would explore how
the judgement structures the narrative.

50
51
 Constitutionality of Spectrum Auction 2015:
Reliance Telecom Ltd. v. Union of India

The Government of India issued a Notice Inviting Auction (NIA) to auction spectrum
to telecommunications companies. The auction was done for different territories in
India. There were several criteria for bidding. In the spectrum band of 900 MHz, the
minimum bid had to be of 5 MHz. Similarly, there were minimum bidding criteria set
for 800 MHz, 1800 MHz and 2100 MHz. The NIA made further classes and fixed
corresponding minimum bids. The classes were, ‘existing licensees’, ‘expiring
licensees’ and ‘new entrants’. The existing licensees were those who already had a
license for the territory. Expiring licensees were those who had a license but it was
going to end soon. The third were the new entrants to the circle.

The telecommunications companies challenged, first before the High Courts and
then the Supreme Court, that the multiple classifications and bid criteria were
violative of the right to equality. There was no ‘intelligible or discernible basis for the
fixation of the criteria and there is no nexus between the criteria and the object
sought to be achieved through the auction.’ It was further contended that the micro-
classification will inevitably favour one or more bidders in certain service areas and
disfavour other bidders.29

The petition before the Supreme Court thus illustrated the arbitrariness. For Bihar
circle, the minimum bidding criteria in the 900 MHz band for a new or existing or
expiring entrant was 5 MHz. The total available band was 6.2 MHz. The existing
operator bid for only 1.6 MHz. The operator was awarded the band. This left 4.6 MHz
of spectrum unsold in Bihar. Similarly, in West Bengal, 4.4 MHz was the minimum
bidding criteria for new entrants/expiring licensees. However, the existing operators
could bid for 0.6 MHz of spectrum. In the North East, the total spectrum put up for
auction was 8.8 MHz. The minimum bid could be for 5 MHz. As a result, there could
be only one successful bidder. The telecommunication companies further contended
that the government of India was hoarding spectrum. This artificially raised the price
and was not in the public interest and interest of the consumers. Similarly, there was
a cap on the maximum bidding which could be done. The telecom companies
contended that these were discriminatory. The government refuted these claims on
the grounds of public interest, consumer interest and competition. The Supreme
Court first reviewed the court judgements on award of spectrum.

The Centre for Public Interest Litigation Case

The government had awarded licences to operators on first-come-first-served basis.

The awards got challenged before the Supreme Court. The court noted on award of
licences:30

As natural resources are public goods, the doctrine of equality, which emerges from
the concepts of justice and fairness, must guide the State in determining the actual
29
Reliance Telecom Ltd. v. Union of India, AIR 2017 SC 337.
30
Centre for Public Interest Litigation and others v. Union of India, AIR 2012 SC 3725.
52
 mechanism for distribution of natural resources. In this regard, the doctrine of equality
has two aspects: first, it regulates the rights and obligations of the State vis-a-vis its
people and demands that the people be granted equitable access to natural resources
and/or its products and that they are adequately compensated for the transfer of the
resource to the private domain; and second, it regulates the rights and obligations of
the State vis-a-vis private parties seeking to acquire/use the resource and demands that
the procedure adopted for distribution is just, non-arbitrary and transparent and that it
does not discriminate between similarly placed private parties. …

In conclusion, we hold that the State is the legal owner of the natural resources as a
trustee of the people and although it is empowered to distribute the same, the process
of distribution must be guided by the constitutional principles including the doctrine
of equality and larger public good.

The court noted on the award of contract.

This Court has repeatedly held that wherever a contract is to be awarded or a licence
is to be given, the public authority must adopt a transparent and fair method for
making selections so that all eligible persons get a fair opportunity of competition. To
put it differently, the State and its agencies/ instrumentalities must always adopt a
rational method for disposal of public property and no attempt should be made to
scuttle the claim of worthy applicants. When it comes to alienation of scarce natural
resources like spectrum, etc. it is the burden of the State to ensure that a non-
discriminatory method is adopted for distribution and alienation, which would
necessarily result in protection of national/public interest.

The government had done the auction on first come first served basis. Commenting
on it, the court noted:

In our view, a duly publicised auction conducted fairly and impartially is perhaps the
best method for discharging this burden and the methods like first-come-first-served
when used for alienation of natural resources/public property are likely to be misused
by unscrupulous people who are only interested in garnering maximum financial
benefit and have no respect for the constitutional ethos and values. In other words,
while transferring or alienating the natural resources, the State is duty-bound to adopt
the method of auction by giving wide publicity so that all eligible persons can
participate in the process.

The court highlighted the principle that it has to be cautious in interfering with policy
decision of the government in economic matters. The court noted:

… the power of judicial review should be exercised with great care and
circumspection and the Court should not ordinarily interfere with the policy decisions
of the Government in financial matters. There cannot be any quarrel with the
proposition that the Court cannot substitute its opinion for the one formed by the
experts in the particular field and due respect should be given to the wisdom of those
who are entrusted with the task of framing the policies. We are also conscious of the
fact that the Court should not interfere with the fiscal policies of the State. However,
when it is clearly demonstrated that the policy framed by the State or its
agency/instrumentality and/or its implementation is contrary to public interest or is

53
 violative of the constitutional principles, it is the duty of the Court to exercise its
jurisdiction in larger public interest and reject the stock plea of the State that the scope
of judicial review should not be exceeded beyond the recognised parameters.

Following the judgement of the court, the government made a reference to the court
on allocation of spectrum. The court noted:

… it is manifest that there is no constitutional mandate in favour of auction under

Article 14. The Government has repeatedly deviated from the course of auction and
this Court has repeatedly upheld such actions. The judiciary tests such deviations on
the limited scope of arbitrariness and fairness under Article 14 and its role is limited
to that extent. Essentially, whenever the object of policy is anything but revenue
maximisation, the executive is seen to adopt methods other than auction.

A fortiori, besides legal logic, mandatory auction may be contrary to economic logic
as well. Different resources may require different treatment. Very often, exploration
and exploitation contracts are bundled together due to the requirement of heavy
capital in the discovery of natural resources. A concern would risk undertaking such
exploration and incur heavy costs only if it was assured utilisation of the resource
discovered: a prudent business venture would not like to incur the high costs involved
in exploration activities and then compete for that resource in an open auction. The
logic is similar to that applied in patents. Firms are given incentives to invest in
research and development with the promise of exclusive access to the market for the
sale of that invention. Such an approach is economically and legally sound and
sometimes necessary to spur research and development. Similarly, bundling
exploration and exploitation contracts may be necessary to spur growth in a specific
industry.

Similar deviation from auction cannot be ruled out when the object of a State policy is
to promote domestic development of an industry … However, these examples are
purely illustrative in order to demonstrate that auction cannot be the sole criterion for
alienation of all natural resources.

Elaborating further, the Court held:

To summarise in the context of the present Reference, it needs to be emphasised that

this Court cannot conduct a comparative study of the various methods of distribution
of natural resources and suggest the most efficacious mode, if there is one universal
efficacious method in the first place. It respects the mandate and wisdom of the
executive for such matters. The methodology pertaining to disposal of natural
resources is clearly an economic policy. It entails intricate economic choices and the
Court lacks the necessary expertise to make them. As has been repeatedly said, it
cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of
auction vis-a-vis other methods of disposal of natural resources. The Court cannot
mandate one method to be followed in all facts and circumstances. Therefore, auction,
an economic choice of disposal of natural resources, is not a constitutional mandate.
We may, however, hasten to add that the Court can test the legality and
constitutionality of these methods. When questioned, the courts are entitled to analyse
the legal validity of different means of distribution and give a constitutional answer as
to which methods are ultra vires and intra vires the provisions of the Constitution.

54
 Nevertheless, it cannot and will not compare which policy is fairer than the other, but,
if a policy or law is patently unfair to the extent that it falls foul of the fairness
requirement of Article 14 of the Constitution, the Court would not hesitate in striking
it down.

… market price, in economics, is an index of the value that a market prescribes to a

good. However, this valuation is a function of several dynamic variables: it is a
science and not a law. Auction is just one of the several price discovery mechanisms.
Since multiple variables are involved in such valuations, auction or any other form of
competitive bidding, cannot constitute even an economic mandate, much less a
constitutional mandate.

In our opinion, auction despite being a more preferable method of alienation/allotment

of natural resources, cannot be held to be a constitutional requirement or limitation for
alienation of all natural resources and therefore, every method other than auction
cannot be struck down as ultra vires the constitutional mandate.

Regard being had to the aforesaid precepts, we have opined that auction as a mode
cannot be conferred the status of a constitutional principle. Alienation of natural
resources is a policy decision, and the means adopted for the same are thus, executive
prerogatives. However, when such a policy decision is not backed by a social or
welfare purpose, and precious and scarce natural resources are alienated for
commercial pursuits of profit maximising private entrepreneurs, adoption of means
other than those that are competitive and maximise revenue may be arbitrary and face
the wrath of Article 14 of the Constitution. Hence, rather than prescribing or
proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural
resources should depend on the facts and circumstances of each case, in consonance
with the principles which we have culled out above. Failing which, the Court, in
exercise of power of judicial review, shall term the executive action as arbitrary,
unfair, unreasonable and capricious due to its antimony with Article 14 of the
Constitution.

Judgement on award of tender

In the current case, the government was auctioning the spectrum. In this context, the
court reviewed the cases on auction and award of contracts. The following are the
excerpts:

In Tata Cellular (AIR 1996 SC 11), a three-Judge Bench … ruled that the modern
trend points to judicial restraint in administrative action and the court does not sit as a
court of appeal but merely reviews the manner in which the decision was made. It
further opined that the court does not have the expertise to correct the administrative
decision and if a review of the administrative decision is permitted, it will be
substituting its own decision without the necessary expertise which itself may be
fallible. The Court further expressed that the terms of the invitation to tender cannot
be open to judicial scrutiny because the invitation to tender is in the realm of contract
and the Government must be allowed to have a fair play in the joints as it is a
necessary concomitant for an administrative body functioning in an administrative
sphere or quasi-administrative sphere. It was also observed that the decision must not
only be tested by the application of Wednesbury principle of reasonableness but must

55
also be free from arbitrariness and must not be affected by bias or actuated by mala
fides and while quashing decisions, heavy administrative burden on the administration
and increase on expenditure have to be kept in view.

In Raunaq International Ltd. v. I.V.R. Construction Ltd., AIR 1999 SC 393 it has
been held that the award of a contract, whether it is by private party or by a public
body or the State, is essentially a commercial transaction and prudent principle of
commerce do weigh while making a commercial decision.

In Monarch Infrastructure (P) Ltd. v. Ulhasnagar Municipal Corpn, AIR 2000 SC 227,
this Court was concerned with the question relating to NIT issued by Ulhasnagar
Municipal Corporation for appointment of agents for collection of octroi and revision
of terms and conditions thereof. The Court held that it cannot say whether the
conditions are better than what were prescribed earlier, for in such matters, the
authority calling for tenders is the best judge. The Court declined to restore status quo
ante.

In Cellular Operators Association of India v. Union of India, AIR 2003 SC 899 …

this Court … held that where legal issues are intertwined with those involving
determination of policy and a plethora of technical issues, courts of law have to be
very wary and must exercise their jurisdiction with circumspection for they must not
transgress into the realm of policy-making, unless the policy is inconsistent with the
Constitution and the laws. It has been further ruled that on matters affecting policy
and those that require technical expertise, the court should show deference to, and
follow the recommendations of the Committee which is more qualified to address the
issues.

In Union of India v. International Trading Co., AIR 2003 SC 3983, this Court held
that non-renewal of permit by the Government to a private party on the ground of
change in its policy cannot be faulted if such change is founded on reasonableness and
is otherwise not arbitrary, irrational and perverse. It was observed that if the State acts
within the bounds of reasonableness, it would be legitimate to take into consideration
the national priorities and adopt trade policies and the ultimate test is whether, on the
touchstone of reasonableness, the policy decision comes out unscathed. It further
ruled that reasonableness of restriction is to be determined in an objective manner and
from the standpoint of the interests of the general public and not from the standpoint
of the interests of the persons upon whom the restrictions have been imposed or upon
abstract consideration. A restriction cannot be said to be unreasonable merely because
in a given case, it operates harshly. In determining whether there is any unfairness
involved, the nature of the right alleged to have been infringed, the underlying
purpose of the restriction imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition and the prevailing condition at
the relevant time enter into the judicial verdict. The Court further held that the
reasonableness of the legitimate expectation has to be determined with respect to the
circumstances relating to the trade or business in question and canalisation of a
particular business in favour of even a specified individual is reasonable where the
interests of the country are concerned or where the business affects the economy of
the country.

56
In Directorate of Education v. Educomp Datamatics Ltd., AIR 2004 SC 1962, this
Court, … held that the terms of the invitation to tender are not open to judicial
scrutiny, the same being in the realm of contract; that the Government must have a
free hand in setting the terms of the tender; that it must have reasonable play in its
joints as a necessary concomitant for an administrative body in an administrative
sphere and the courts would interfere with the administrative policy decision only if it
is arbitrary, discriminatory, mala fide or actuated by bias and the courts cannot strike
down the terms of the tender prescribed by the Government because it feels that some
other terms in the tender would have been fair, wiser or logical. The courts can
interfere only if the policy decision is arbitrary, discriminatory or mala fide. …

In Global Energy Ltd. and another v. Adani Exports Ltd. AIR 2005 SC 2653, this
Court reiterated the principles that the terms of the invitation to tender are not open to
judicial scrutiny and the courts cannot whittle down the terms of the tender as they are
in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by
malice.

In Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd., AIR 2005
SC 2299, the Court, … observed that the government policy can be changed with
changing circumstances and only on the ground of change, such policy will not be
vitiated and the Government has discretion to adopt a different policy or alter or
change its policy calculated to serve the public interest and make it more effective as
the choice in the balancing of the pros and cons relevant to the change in policy lies
with the authority, but change in policy must be in conformity with Wednesbury
reasonableness and free from arbitrariness, irrationality, bias and malice.

In Michigan Rubber (India) Limited v. State of Karnataka, AIR 2012 SC 2915 … the
Court … expressed the view that the basic requirement of Article 14 is fairness in
action by the State, and non-arbitrariness in essence and substance is the heartbeat of
fair play and actions are amenable to judicial review only to the extent that the State
must act validly for a discernible reason and not whimsically for any ulterior purpose
and if the State acts within the bounds of reasonableness, it would be legitimate to
take into consideration the national priorities. It further observed that fixation of a
value of the tender is entirely within the purview of the executive and the courts
hardly have any role to play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable. If the Government acts in
conformity with certain healthy standards and norms such as awarding of contracts by
inviting tenders, in those circumstances, the interference by courts is very limited
unless the action of the tendering authority is found to be malicious and a misuse of
its statutory powers and greater latitude is required to be conceded to the State
authorities in the matter of formulating conditions of a tender document and awarding
a contract. The Court also laid emphasis on public interest and the prudence in
applying the principle of restraint where the action is fair and reasonable and does not
smack of mala fide. It was also emphasized that the courts cannot interfere with the
terms of the tender prescribed by the Government simply because it feels that some
other terms in the tender would have been fair, wiser or logical.

In Maa Binda Express Carrier and another v. North-East Frontier Railway, AIR 2014
SC 390 this Court held that the scope of judicial review in matters relating to award of
contracts by the State and its instrumentalities is settled by a long line of decisions of

57
 this Court which clearly recognise that the power exercised by the Government and its
instrumentalities in regard to allotment of contract is subject to judicial review at the
instance of an aggrieved party, and the submission of a tender in response to a notice
inviting such tenders is no more than making an offer which the State or its agencies
are under no obligation to accept and, therefore, the bidders participating in the tender
process cannot insist that their tenders should be accepted simply because a given
tender is the highest or lowest depending upon whether the contract is for sale of
public property or for execution of works on behalf of the Government. It further
ruled that all that the participating bidders are entitled to is a fair, equal and non-
discriminatory treatment in the matter of evaluation of their tenders and it is well
settled that award of a contract is essentially a commercial transaction which must be
determined on the basis of considerations that are relevant to such commercial
decision and, hence, the terms subject to which tenders are invited are not open to
judicial scrutiny unless it is found that the same have been tailor-made to benefit any
particular tenderer or class of tenderers. The Court further held that in the matter of
award of contracts, the Government and its agencies have to act reasonably and fairly
at all points of time and to that extent, the tenderer has an enforceable right in the
court which is competent to examine whether the aggrieved party has been treated
unfairly or discriminated against to the detriment of public interest.

In Census Commissioner v. R. Krishnamurthy, (2015) 2 SCC 796, a three-Judge

Bench of this Court, after noting several decisions, held that it is not within the
domain of the courts to embark upon an enquiry as to whether a particular public
policy is wise and acceptable or whether a better policy could be evolved and the
courts can only interfere if the policy framed is absolutely capricious or not informed
by reasons or totally arbitrary and founded ipse dixit offending the basic requirement
of Article 14 of the Constitution. It further observed that in certain matters, as often
said, there can be opinions but the court is not expected to sit as an appellate authority
on an opinion.

Application to the case

After a review of the cases, the court applied itself to the case before it. The
followings are excerpts from the judgement:

The present controversy has to be tested on the touchstone of the aforesaid parameters of
judicial review. … Though the grounds of attack have been stated in a manifold manner, yet
they are really founded on certain basic assertions, namely, that the entire spectrum available
has not been put to auction which tantamounts to hoarding by the Central Government; that
an endeavour has been made by the authorities to keep the real competitors away by
providing a cap and resultantly making the bid non-competitive; that the classification made
in the NIA is hit by unreasonableness with no objective to serve because the condition of
buying of 5 MHz of spectrum is not applicable to the existing/non-expiring licensees and
providing minimum bidding option for different categories is wholly discriminatory; and that
the surrendered spectrum or unused spectrum should have been notionally added so that there
would have been fairness in auction, and that would have met the concept of legitimate
expectation.

As the factual score depicts, the NIA had stipulated capping and simultaneously allowed
certain categories to bid for a lesser quantum to enhance the existing spectrum with them so

58
that they can reach a particular level. The reason shown by the [government] is that a
minimum spectrum is determined to enhance the efficiency and capability of the service
providers so that the arrangement can be beneficial to the consumers and they can avail
requisite benefit and have better service. The licensees who do not have the specific quantum
can bid for the balance so that the efficiency of service is enhanced. If a minimum is provided
for a particular area or zone having regard to the necessity and the interest of the consumers,
we are of the considered opinion that it subserves the larger public interest. The said
stipulation might have affected the individual interest of certain categories of licensees or
aspirants but that cannot weigh over the public interest.

As far as the classification is concerned, it is noticed that some bidders have not been allowed
to participate in respect of certain areas. The argument on behalf of the Central Government
is that it has been done to curtail the monopoly and to encourage a broad based competition
and further to allow certain entities who do not have the adequate spectrum so that there is
augmentation of revenue as well as enhancement of efficiency in providing the service. It is
further explained that it has been done keeping in view the commercial interest and the
holistic concept of public interest. Learned counsel for the petitioners would contend that it is
demolition and ruination of public trust because the State holds spectrum in trust and it
cannot be allowed to hoard by adopting such a subterfuge. It is apt to note here that after
holding of the auction, what is available is 52.7 MHz in various bands. Explaining the same,
the Union of India has submitted that historically, all the identified 75 MHz spectrum for
mobile services in 1800 MHz band in all 22 service areas was with the defence and other
users prior to 2001 when it was allocated for the first time for commercial mobile services in
India after co-ordination with the then existing users. The spectrum in 1800 MHz band was
coordinated by the defence on a case to case basis either in the entire service area or in parts
of the service area (i.e., district-wise). It is further put forth that based on the coordination
received from the Defence, the spectrum in 1800 MHz band was allotted, from time to time,
for commercial use by Telecom Service Providers. In January, 2015, a decision was taken in
consultation with the defence that instead of the case by case approach adopted, 55 MHz out
of 75 MHz available in spots will be allotted to telecom service providers (TSPs) and the rest
will be used by the defence. Within the 1800 MHz band, the exact frequencies to be allotted
to TSPs and those to be used by the defence have been earmarked.

It is the stand of the Central Government that, the process of allotting all the frequencies
identified to TSPs will require some time since there are operational networks of the defence
in the segment identified for telecom services in 1800 MHz band. Similarly, frequency spots
have been allotted to various TSPs in the segments identified for use by the defence. It has
been averred that the discussions have started with the defence for harmonizing the spectrum
in 1800 MHz band and TSPs have also been consulted as they too have to shift their networks
to new spots. According to the respondent-Union of India, the operational network of the
defence is required to be continued until alternate arrangements are available for seamless
operation of defence networks or else it would compromise the national security and regard
being had to the same, no time frame can be set as to when the said quantum would be
available for public auction.

Additionally, it is put forth that the evolution of the telecommunication sector is a continuous
process world-wide. New bands and technologies are being identified for providing
commercial services. For example, Wide Band Code Division Multiple Access (WCDMA)
technology, commonly known as 3G technology, has been developed and was deployed in
our country in 2100 MHz band. 465 MHz spectrum in this band was co-ordinated from the

59
defence and got released for telecom commercial services in 2010 and was auctioned.
Further, as per the decision of the Government in January 2015, an additional 85 MHz of
spectrum in this band was released by the defence and was part of the auction conducted in
March 2015. It is also submitted that efforts are being made to get 15 MHz of spectrum
released in each of the 22 service areas in 2100 MHz band also from the Defence. Although
in this case also, no time frame can be set as to when it would be made available, yet it is
expected to be released during the process of completion of harmonization of 1800 MHz
band spectrum and it will make 345 MHz of spectrum available in this band; and accordingly,
there is a proposal to include the same in the next auction. It is further canvassed that as a part
of identifying new bands and technologies and releasing for providing commercial services,
880 MHz spectrum in Time Division Duplex (TDD) mode was also included in 2300 MHz
band for the auction conducted in 2010 and 320 MHz of spectrum in this band is proposed to
be included for the next auction. Similarly, 440 MHz spectrum in 2500 MHz band was
allocated to BSNL and MTNL in 2007-08. However, 160 MHz spectrum was surrendered by
them. TRAI has been requested to expedite recommendations for reserve price and associated
conditions. A total quantum of 600 MHz of spectrum in this band, including that surrendered
by BSNL/MTNL, is available. It is projected that the channeling plan adopted in India for
2500 MHz band requires further development to reach up to the International Mobile
Technology (IMT) band considering the issues relating to techno-economic feasibility and
availability of commercial eco-systems. That apart, it is also put forth that efforts are being
made to make the spectrum reasonably available for auction and they will be included in the
subsequent auctions. It has further been highlighted by the learned Attorney General that the
availability of spectrum would be determined after it is harmonized with the need of the
defence and feasibility of its inclusion due to techno-economic facets.

As we find, the decision taken by the Central Government is based upon certain norms and
parameters. Though criticism has been advanced that it is perverse and irrational, yet we are
disposed to think that it is a policy decision which subserves the consumers' interest. It is
extremely difficult to say that the decision to conduct the auction in such a manner can be
considered to be mala fide or based on extraneous considerations.

… We are inclined to think that when auction is held in respect of spectrum after taking into
consideration certain range of facts and circumstances which are founded on economic and
social policy factors, it is difficult to unsettle the NIA and the consequential effect thereof by
applying the principle of judicial review. The procedure adopted in this kind of auction is
neither to be equated nor compared with the process meant for grant of ordinary largesse. It is
because of its complexity, technical expertise, enormous financial impact and the larger
public interest. Recently, in Tamil Nadu Generation and Distribution Corporation Ltd
(TANGEDCO) v. CSEPDI - Trishe Consortium, AIR 2016 SC 4879, the Court, while
discussing the role of fiscal evaluation, has observed that:

"At this juncture we are obliged to say that in a complex fiscal evaluation the Court
has to apply the doctrine of restraint. Several aspects, clauses, contingencies, etc. have
to be factored. These calculations are best left to experts and those who have
knowledge and skills in the field. The financial computation involved, the capacity
and efficiency of the bidder and the perception of feasibility of completion of the
project have to be left to the wisdom of the financial experts and consultants. The
courts cannot really enter into the said realm in exercise of power of judicial review.
We cannot sit in appeal over the financial consultant's assessment. Suffice it to say, it

60
 is neither ex facie erroneous nor can we perceive as flawed for being perverse or
absurd.

In this context, a passage from Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation
Ltd., AIR 2016 SC 4305:

"We may add that the owner or the employer of a project, having authored the tender
documents, is the best person to understand and appreciate its requirements and
interpret its documents. The constitutional Courts must defer to this understanding
and appreciation of the tender documents, unless there is mala fide or perversity in the
understanding or appreciation or in the application of the terms of the tender
conditions. It is possible that the owner or employer of a project may give an
interpretation to the tender documents that is not acceptable to the constitutional
Courts but that by itself is not a reason for interfering with the interpretation given."

The said decision has been concurred with by another two-Judge Bench in Montecarlo Ltd. v.
NTPC Ltd., AIR 2016 SC 4946 stating thus:

We respectfully concur with the aforesaid statement of law. We have reasons to do so.
In the present scenario, tenders are floated and offers are invited for highly complex
technical subjects. It requires understanding and appreciation of the nature of work
and the purpose it is going to serve. It is common knowledge in the competitive
commercial field that technical bids pursuant to the notice inviting tenders are
scrutinized by the technical experts and sometimes third party assistance from those
unconnected with the owner's organization is taken. This ensures objectivity. Bidder's
expertise and technical capability and capacity must be assessed by the experts. In the
matters of financial assessment, consultants are appointed. It is because to check and
ascertain that technical ability and the financial feasibility have sanguinity and are
workable and realistic. There is a multi-prong complex approach; highly technical in
nature. The tenders where public largesse is put to auction stand on a different
compartment. Tender with which we are concerned, is not comparable to any scheme
for allotment. This arena which we have referred requires technical expertise.
Parameters applied are different. Its aim is to achieve high degree of perfection in
execution and adherence to the time schedule. But, that does not mean, these tenders
will escape scrutiny of judicial review. Exercise of power of judicial review would be
called for if the approach is arbitrary or malafide or procedure adopted is meant to
favour one. The decision making process should clearly show that the said maladies
are kept at bay. But where a decision is taken that is manifestly in consonance with
the language of the tender document or subserves the purpose for which the tender is
floated, the court should follow the principle of restraint. Technical evaluation or
comparison by the court would be impermissible. The principle that is applied to scan
and understand an ordinary instrument relatable to contract in other spheres has to be
treated differently than interpreting and appreciating tender documents relating to
technical works and projects requiring special skills. The owner should be allowed to
carry out the purpose and there has to be allowance of free play in the joints."

It is necessary to add a clarification. In TANGEDCO (AIR 2016 SC 4879)(supra), the

question arose with regard to grant of contract of a particular work and it involved a complex
situation. In Montecarlo Ltd. (AIR 2016 SC 4946)(supra), the question was relating to
technical evaluation and comparison. In the present case, we are concerned with putting

61
certain natural resources into auction. In that regard, a decision has been taken. The
grievances that have been adroitly accentuated are that the entire available spectrum should
have been put to auction; that there should not have been any cap; that all could have been
permitted to bid for everything; and that apart, the principle of legitimate expectation ought to
have been kept in view. The counter argument, as has been placed before us, is founded on
two underlined principles, namely, to hold the auction which would serve collective
consumer interest thereby serving the public interest, and second, to get the maximum
revenue. On one hand, the submission of the petitioners is that the auction is anti-competitive
and on the other, the submission of the Central Government is that it is a healthy competition
and avoidance of any kind of monopoly. There is also assurance in the reply that whatever
has been left will be put to auction after getting the clearance from the defence and further
keeping in view the aspect of techno-economic and commercial eco-system feasibility. As far
as the allocation to the defence and its need is concerned, it can be said that it is always in the
realm of public interest and it subserves the interest of the nation. As far as the economic
feasibility is concerned, multifold economic aspects have to be taken into consideration and
as a resultant effect, as shown during the process of auction, the bids became higher and
higher and there has been real competition whereby the offers have been raised. There is
remotely any allegation that attempt has been made to scuttle the competition. On the
contrary, bidders have been allowed to bid and enhance their offer as a prudent commercial
men would do. Therefore, it cannot be said that there has been no attempt to maximize the
revenue. It will not be inapposite to note that the bidders who had preferred writ petitions and
special leave petitions after having been successful in certain areas withdrew the petitions and
in other areas where they were not able to bid because of the conditions in the tender, they
have agitated their grievances.

We have already discussed that the condition to put a cap and make a classification not
allowing certain entities to bid is not an arbitrary one as it is based on the acceptable rationale
of serving the cause of public interest. It allowed new entrants and enabled the existing
entities to increase their cap to make the service more efficient. The Court cannot get and
dwell as an appellate authority into complex economic issues on the foundation of
competitors advancing the contention that they were not allowed to bid in certain spheres. As
the stipulation in the tender was reasonable and not based on any extraneous considerations,
the Court cannot interfere in the NIA in exercise of the power of judicial review. The
contention is that the State cannot hoard the spectrum as per the 2G case. We are disposed to
think that in the case at hand, it cannot be said that there has been hoarding. The directions
given in the 2G case had been complied with and the auctions have been held thereafter from
year to year. The feasibility of communication, generation of revenue and its maximization
and subserving of public interest are to be kept in view. The explanation given by the Union
of India for not putting the entire spectrum to auction is a reasonable one and it is put forth
that an endeavour would be made to put it to auction when it becomes available in sufficient
quantum. The Court cannot interfere with the tender conditions only on the ground that
certain amount of spectrum has not been put to auction. The submission is that whatever has
been put to auction and is available should have been notionally added so that the entities
which have certain quantum of spectrum in praesenti could have participated in the auction
and put forth their bids for a higher quantum. This argument may look attractive on a first
blush but pales into insignificance on a studied scrutiny. As is evincible, one of the
petitioners had earlier more than 65 MHz in a band and because of the limited auction and
non-addition of available spectrum on notional basis, it has obtained less quantum. With this
submission, the contention of legitimate expectation has been associated. We have already
repelled the submission pertaining to legitimate expectation. If there has been a reduction for

62
a particular entity because of the terms and conditions of the tender, it has to accept it, for he
cannot agitate a grievance that he could have obtained more had everything been added
notionally. Notionally adding up or not adding up, we think, is a matter of policy and that too
a commercial policy and in a commercial transaction, a decision has to be taken as prudence
would command. In this regard, reference to the decision in Asia Foundation and
Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others27 would be apt. In the
said case, the Court referred to the authority in Tata Cellular (AIR 1996 SC 11)(supra) and
thereafter opined that though the principle of judicial review cannot be denied so far as
exercise of contractual powers of government bodies are concerned, but it is intended to
prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is
brought to the notice of the court that in the matter of award of a contract power has been
exercised for any collateral purpose. In the instant case, we are unable to perceive any
arbitrariness or favouritism or exercise of power for any collateral purpose in the NIA. In the
absence of the same, to exercise the power of judicial review is not warranted. In the case at
hand, we think, it is a prudent decision once there is increase of revenue and expansion of the
range of service.

It needs to be stressed that in the matters relating to complex auction procedure having
enormous financial ramification, interference by the Courts based upon any perception which
is thought to be wise or assumed to be fair can lead to a situation which is not warrantable
and may have unforeseen adverse impact. It may have the effect potentiality of creating a
situation of fiscal imbalance. In our view, interference in such auction should be on the
ground of stricter scrutiny when the decision making process commencing from NIA till the
end smacks of obnoxious arbitrariness or any extraneous consideration which is perceivable.

In view of the aforesaid analysis, we do not perceive any merit in these Transfer Cases and
consequently, they are dismissed with no order as to costs.

The Supreme Court, thus, held the auction by the government to be not violative of
the constitution.

63
 ‘Right to Equality’ and Manifest Arbitrariness: The Call Drop Case

A cell phone user in India is familiar with the term ‘call drop’. A phone user
successfully connects a call, and then, while the conversation is on, the connection
snaps. It may snap abruptly or following disruptions. The telecom regulatory body,
the Telecom Regulatory Authority of India (TRAI) made regulations awarding a
compensation to the caller, at the rate of Rs. 1 per drop call, with a maximum of
three drop calls a day. The cellular operators challenged the constitutional validity of
the law on the grounds of the right to equality. The Supreme Court in its judgement,
Cellular Operators Association of India v. Telecom Regulatory Authority of India 31
has developed ‘manifest arbitrariness’ being a ground for the violation of the right to
equality enshrined in Article 14 of the constitution.

The Cellular Operators and TRAI

Since the mid-1990s, the Central Government has been giving licences to
companies to run mobile phone and data services. This has been done under the
Indian Telegraph Act, 1885. The law from the prior century gives wide powers and
monopoly to the government on everything connected with telecommunications. The
Central Government gave licences for different states and regions. The licences
have several standard terms and conditions. The conditions require the operator to
establish a state of the art digital network and provide and maintain services of good
standards. The Central government had the power to modify the terms of these long
term licences in public interest or for proper conduct of the services. Within the
terms, the operator has to ensure that the coverage of a district headquarters/town is
at least 90% of the area bounded by the municipal limits. The conditions also provide
for liquidated damages to be paid by the operator for certain defaults.

Alongside, the Parliament enacted the Telecom Regulatory Authority of India Act,
1997 to constitute a telecommunications regulatory body, the Telecom Regulatory
Authority of India (TRAI). The Act gave wide powers to TRAI to make regulations for
a fair and sustainable development of the telecommunication sector. TRAI made
several regulations, governing different aspects of the sector. The first one relevant
for the case is, the Quality of Service Regulation, 2009. As the title suggests, the
regulation required the operators to maintain certain quality of service. The second
relevant regulation was the Telecom Consumers Protection Regulations, 2012. The
regulation made measures for the protection of the mobile subscribers.

Shortage of mobile towers was a major impediment in strengthening the cellular

phone service. There was a constant tussle between the operators and municipal
authorities. The municipal authorities were apprehension that radiation from the
towers was harmful to human health, and restricted the setting up of cell phone
towers. The two ended up in court battles. The Central Government, to facilitate the
digital network, wrote to the state governments to grant timely permissions for
establishing telecom towers.

31
Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR
2016 SC 2336.
64
TRAI was well aware of the constraints and impediments. Recognising it, the Quality
of Service Regulation, 2009 permitted 2% call drop rate for the operator averaged
over a month. A call drop was a customer successfully connected to another and
then, the call snapped.

TRAI was receiving complaints from the customers on call drop. It issued a
consultation paper, "Compensation to the Consumers in the event of dropped calls"
and circulated it for comments and suggestions from the stakeholders, including the
consumer groups and cellular operators. According to TRAI, the consumers wanted
relief for the call drop. The operators, on the other hand, brought out to TRAI that
closing down of towers by the municipal authorities was the reason for call drops.
Following the consultation, in 2015, TRAI amended the Telecom Consumers
Protection Regulations, 2012 to introduce provisions on call drop. The Explanatory
Memorandum, thus, summarised the position of TRAI:

After a careful analysis, the Authority has come to the conclusion that call drops are
instances of deficiency in service delivery on part of the [operator] which cause
inconvenience to the consumers, and hence, it would be appropriate to put in place a
mechanism for compensating the consumers in the event of dropped calls. The
Authority is of the opinion that compensatory mechanism should be kept simple for
the ease of consumer understanding and its implementation by the [operator]. While
one may argue that amount of compensation should be commensurate to the loss/
suffering caused due to an event but in case of a dropped call it is difficult to quantity
the loss/suffering/inconvenience caused to the consumers as it may vary from one
consumer to another and also in accordance to their situations. Accordingly, the
Authority has decided to mandate originating [operator] to credit one Rupee for a
dropped call to the calling consumers as notional compensation. Similarly, the
Authority has decided that such credit in the account of the calling consumer shall be
limited to three dropped calls in a day (00:00:00 hours to 23:59:59 hours). The
Authority is of the view that such a mandate would compensate the consumers for the
inconvenience caused due to interruption in service by way of call drops, to a certain
extent.

The amendment to the Telecom Consumers Protection Regulations, 2012

introduced and defined a call drop to read:

"call drop" means a voice call which, after being successfully established, is
interrupted prior to its normal completion; the cause of early termination is within the
network of the service provider.

For a call drop, a ‘calling consumer’ was provided relief and compensation, who was,
‘a consumer who initiates a voice call’. The relief was introduced as article 16 in the
regulation. It read:

16. Measures to provide relief to consumers. - Every originating service provider

providing Cellular Mobile Telephone Service shall, for each call drop within its
network,

(a) credit the account of the calling consumer by one rupee:

65
 Provided that such credit in the account of the calling consumer shall be limited to
three dropped calls in a day (00:00:00 hours to 23:59:59 hours);

(b) provide the calling consumer, through SMS/USSD message, within four hours of
the occurrence of call drop, the details of amount credited in his account; and

(c) in case of post-paid consumers, provide the details of the credit in the next bill.

Cellular Operators Association of India, the representative body of cellular operators,

challenged the constitutional validity of the amendment. It contended that the
requirement of payment for a call drop was an arbitrary provision to penalise the
operator and violated the right to equality in Article 14 of the constitution. The second
contention was it violated the fundamental right of trade, occupation and profession
in article 19(6) of the constitution.

Arbitrariness and the Right to Equality

Article 14 of the Constitution of India enshrines the right to equality. The article
reads:

14. Right to Equality: The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India.

In Royappa Case32, the Supreme Court expanded the meaning and scope of the
right to equality. It noted:

… equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14.

The arbitrariness principle was reiterated in several subsequent judgements of the

Supreme Court. In the Airport Authority Case 33, the Supreme Court consolidated the
principle:

It is now well settled … that Art. 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. It requires that State action must not be arbitrary
but must be based on some rational and relevant principle which is non-discriminatory
… The principle of reasonableness and rationality which is legally as well as
philosophically an essential element of equality or non-arbitrariness is protected by
art. 14...

The conventional political theory was that the legislature legislates, executive
executes the law and the judiciary interprets the law. The legislature enacts acts,
also called statutes. In the past century, the task of governance and regulation
became complex and required expertise and specialisation. The legislature, lacking

32
E. P. Royappa v. State of T.N., AIR 1974 SC 555.
Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC
33

1628.
66
the expertise, delegated detailing and law making to the executive by giving it rule
making powers. This came to be called delegated legislation. Other times, the
executive administered the law through notifications and government orders. Rules,
notification and government orders too are law. The law made by the executive
came to be distinguished from its source, acts made by the legislature, as
subordinate legislation. The disputes which came before the court raising the
arbitrariness principle, were in relation to executive action. The arbitrariness principle
got referenced to executive action and subordinate legislation. In the Indian Express
Case34, the Supreme Court noted:

A piece of subordinate legislation does not carry the same degree of immunity which
is enjoyed by a statute passed by a competent legislature. Subordinate legislation may
be questioned on any of the grounds on which plenary legislation is questioned. In
addition, it may also be questioned on the ground that it does not conform to the
statute under which it is made. It may further be questioned on the ground that it is
contrary to some other statute. That is because subordinate legislation must yield to
plenary legislation. It may also be questioned on the ground that it is unreasonable,
unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary. In India arbitrariness … come[s] within the embargo of Article
14 of the Constitution. … [subordinate legislation] is so arbitrary that it could not be
said to be in conformity with the statute or that it offends Article 14 of the
Constitution.

The term ‘manifestly arbitrary’, drawn from British cases, got deployed for the
judgement for the first time. The term gained currency later.

In Khoday Distilleries Ltd. v. State of Karnataka 35, the Supreme Court took further the
‘manifestly arbitrary’ principle. The court, drawing a distinction between executive
action and delegated legislation, stated the arbitrariness principle:

… one must bear in mind that what is being challenged here under Article 14 is not
executive action but delegated legislation. The tests of arbitrary action which apply to
executive actions do not necessarily apply to delegated legislation. In order that
delegated legislation can be struck down, such legislation must be manifestly
arbitrary; a law which could not be reasonably expected to emanate from an authority
delegated with the lawmaking power. In [the Indian Express Case]36 this Court said
that a piece of subordinate legislation does not carry the same degree of immunity
which is enjoyed by a statute passed by a competent legislature. A subordinate
legislation may be questioned under Article 14 on the ground that it is unreasonable;
"unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary". … In India, arbitrariness is not a separate ground since it will
come within the embargo of Article 14 of the Constitution. But subordinate legislation
must be so arbitrary that it could not be said to be in conformity with the statute or
that it offends Article 14 of the Constitution.

34
Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, AIR 1986 SC 515.
35
Khoday Distilleries Ltd. v. State of Karnataka, AIR 1996 SC 911.
36
AIR 1986 SC 515
67
The arbitrariness principle got reiterated in Sharma Transport v. Government of
Andhra Pradesh.37 The court formulated:

The tests of arbitrary action applicable to executive action do not necessarily apply to
delegated legislation. In order to strike down a delegated legislation as arbitrary it has
to be established that there is manifest arbitrariness. In order to be described as
arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The
expression "arbitrarily" means in an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate determining principle, not founded in the
nature of things, non-rational, not done or acting according to reason or judgment,
depending on the will alone.

The Current Call Drop Case

Drawing from the chain of judgements, the Supreme Court in the present case stated
that the tests for challenging the constitutionality of subordinate legislation is that it
should not be ‘manifestly arbitrary.’ It elaborated:

In order to strike down a delegated legislation as arbitrary it has to be established that

there is manifest arbitrariness. In order to be described as arbitrary, it must be shown
that it was not reasonable and manifestly arbitrary. The expression "arbitrarily"
means: in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgment, depending on the will
alone.

Turning to the regulation providing for the payment for call drop, the court noted:

… the Regulation must, in order to pass constitutional muster, be as a result of

intelligent care and deliberation, that is, the choice of a course which reason dictates.
Any arbitrary invasion of a fundamental right cannot be said to contain this quality.

A few days before the amendment came into effect, TRAI had issued a paper,
“Technical Paper on call drops in cellular network". The paper identified the reason
for call drop to be that subscriber base had grown far more rapidly than the
infrastructure. It identified that the consumer himself was in fault in 36.9% of the
cases for the call drop. Further, only Aircel was not meeting the parameter of
monthly call drop rate of 2%. The paper concluded:

In light of the reasons discussed above about the increase in call drops, it must be
realized that mobile towers do not have an unlimited capacity for handling the current
network load. There is an urgent need to increase the number of the towers so as to
cater to the demands of a growing subscriber base. At the same time, problems like
removal of towers from certain areas by Authorities should be adequately addressed.
This problem is particularly evident in urban areas. Moreover, with the increase in the
usage of 3G networks, the growth rate of mobile towers supporting 2G networks has
reduced. This must be addressed.

37
Sharma Transport v. Government of Andhra Pradesh, AIR 2002 SC 322
68
Before the court, the parties contested the technical reasons for call drop. The court
noted:

According to the learned Attorney General, the cause for call drops is twofold - one
owing to the fault of the consumer, and the other owing to the fault of the service
provider. … an average of 36.9% can be call drops owing to the fault of the
consumer. If this is so, the … Regulation's very basis is destroyed: the Regulation is
based on the fact that the service provider is 100% at fault. …This being the case, it is
clear that the service provider is made to pay for call drops that may not be
attributable to his fault, and the consumer receives compensation for a call drop that
may be attributable to the fault of the consumer himself, and that makes the …
regulation framed without intelligent care and deliberation.

The court, with reference to the technical paper which attributed 36.9% of the call
drops to the consumers, observed:

Instead of having a relook at the problem in the light of the said technical paper, the
Authority has gone ahead with the Impugned Regulation, which states that the said
Regulation has been brought into force because of deficiency of service in service
providers leading to call drops. The very basis of this statement contained in the
Explanatory Memorandum to the Impugned Regulation is found by the self-same
Authority to be incorrect only a few days after publishing the Impugned Regulation.
This itself shows the manifest arbitrariness on the part of the TRAI, which has not
bothered to have a relook into the said problem. For all the aforesaid reasons, we find
that the Impugned Regulation is manifestly arbitrary and therefore, violative of
Article 14 … and is therefore, struck down as such.

The government argued that the regulation was made in the general interest of the
public. The court noted:

While accepting that TRAI may have done so, yet it is important to note that, apart
from the common good in the form of consumer interest, the Regulation must also
pass a separate and independent test of not being manifestly arbitrary or unreasonable.
We cannot forget that when viewed from the angle of manifest arbitrariness or
reasonable restriction, … the Regulation must, in order to pass constitutional muster,
be as a result of intelligent care and deliberation, that is, the choice of a course which
reason dictates.

The government highlighted that the operator was not to pay for every call drop. It
only had to pay a maximum of three call drop per customer a day. The Regulation
should be read to mean to apply to the call drops when the service provider was in
fault. The court disagreed:

We are afraid that such a course is not open to us in law, for it is well settled that the
doctrine of reading down would apply only when general words used in a statute or
regulation can be confined in a particular manner so as not to infringe a constitutional
right.

The court applied the principle to the regulation:

69
 … the language of the Regulation is definite and unambiguous - every service
provider has to credit the account of the calling consumer by one rupee for every
single call drop which occurs within its network. The Explanatory Memorandum …
makes it clear …that the Authority has come to the conclusion that call drops are
instances of deficiency in service delivery on the part of the service provider. It is thus
unambiguously clear that the Impugned Regulation is based on the fact that the
service provider is alone at fault and must pay for that fault. In these circumstances, to
read a proviso into the Regulation that it will not apply to consumers who are at fault
themselves is not to restrict general words to a particular meaning, but to add
something to the provision which does not exist, which would be nothing short of the
Court itself legislating. For this reason, it is not possible to accept the learned
Attorney General's contention that the Impugned Regulation be read down in the
manner suggested by him.

The government argued that the regulation was to protect the consumers and ensure
orderly growth of the telecom sector. The court observed that it could not be done by
‘a manifestly arbitrary or unreasonable regulation’ which makes the operator pay a
‘penalty without it being necessarily at fault.’ The government next argued that the
operators were earning huge profits and not investing adequately in infrastructure.
The amount required to be paid to the customers was ‘flea bite compared to the
profits’. The operators contested and claimed that their revenue was far less than
their debts. The court noted:

Without going into the factual controversy thus presented, there are two answers to
this submission. First and foremost, whether the service providers make profits or
losses cannot be said to be relevant for determining whether the Impugned Regulation
is otherwise arbitrary or unreasonable. If the Attorney General were correct, then the
converse proposition would also be true - namely, that even if all the service providers
were suffering huge losses, then such regulation, since it makes them fork out crores
of rupees and add to their losses, would have to be held to be unconstitutional.
Assuming that six out of the twelve service providers make profits, and the other six
make losses, the Impugned Regulation cannot be held to be constitutional so far as
those making a profit, and unconstitutional qua those making losses. And what if the
same service provider makes a profit in one year and a loss in the succeeding year. Is
the Impugned Regulation unconstitutional in the first year and constitutional in the
succeeding year? Obviously not. Secondly, it is always open to the Authority, with the
vast powers given to it under the TRAI Act, to ensure, in a reasonable and non-
arbitrary manner, that service providers provide the necessary funds for infrastructure
development and deal with them so as to protect the interest of the consumer.
Consequently, this submission is also without substance.

The Quality of Service Regulation allowed the operators a monthly average of 2%

call drop. The operators were compliant with it. At the same time, the consumer
regulation required the operators to pay the consumers for up to three call drops a
day. The operators argued that they were being penalised even when they were
compliant with the quality regulation. For this reason, the consumer regulation should
be held to be manifestly arbitrary. The Attorney General contested by reasoning that
the two regulations should be seen separately, ‘as they are distinct regulations in
parallel streams.’ Maintaining a quality standard of 2% call drop for the entire area
was different from compensating specific consumers. It was illustrated that there

70
may be extensive call drop in a sector and not in others. The operator, thus, could
maintain its monthly limit of 2% call drop without any remedy for the consumer
serving the inconvenience of call drop. The court ruled:

We are afraid neither of these reasons avails the Authority. First and foremost, the
2009 Quality of Service Regulation is made under Section 11(1)(b)(v), which is the
very Section which is claimed to be the source of the Impugned Regulation. Secondly,
both Regulations deal with the same subject matter - namely, call drops, and both
Regulations are made in the interest of the consumer. If an average of 2% per month
is allowable to every service provider for call drops, and it is the admitted position
that all service providers before us, short of Aircel, and that too in a very small way,
have complied with the standard, penalizing a service provider who complies with
another Regulation framed with reference to the same source of power would itself be
manifestly arbitrary …

The court noted that in judging the reasonableness of a law, it will look at not only
the surrounding circumstances but all contemporaneous legislation passed as part of
a single scheme. The court ruled:

… the Quality of Service Regulations and the Consumer Regulations must be read
together as part of a single scheme in order to test the reasonableness thereof. The
countervailing advantage to service providers by way of the allowance of 2% average
call drops per month, which has been granted under the 2009 Quality of Service
Regulations, could not have been ignored by the Impugned Regulation so as to affect
the fundamental rights of the appellants, and having been so ignored, would render
the Impugned Regulation manifestly arbitrary and unreasonable.

The court further noted:

Secondly, no facts have been shown to us which would indicate that a particular area
would be filled with call drops thanks to the fault on the part of the service providers
in which consumers would be severely inconvenienced. … without any facts being
pleaded to this effect, cannot possibly make an unconstitutional regulation
constitutional. We, therefore, hold that a strict penal liability laid down on the
erroneous basis that the fault is entirely with the service provider is manifestly
arbitrary and unreasonable. Also, the payment of such penalty to a consumer who
may himself be at fault, and which gives an unjustifiable windfall to such consumer,
is also manifestly arbitrary and unreasonable.

The Explanatory Memorandum had recorded the compensation to be only notional.

The court found this without any basis. It noted:

The very notion that only notional compensation is awarded, is also entirely without
basis. A consumer may well suffer a call drop after 3 or 4 seconds in a voice call.
Whereas the consumer is charged only 4 or 5 paise for such dropped call, the service
provider has to pay a sum of rupee one to the said consumer. This cannot be called
notional at all. It is also not clear as to why the Authority decided to limit
compensation to three call drops per day or how it arrived at the figure of Re.1 to
compensate inconvenience caused to the consumer. It is equally unclear as to why the
calling party alone is provided compensation because, according to the Explanatory

71
 Memorandum, inconvenience is suffered due to the interruption of a call, and such
inconvenience is suffered both by the calling party and the person who receives the
call. The receiving party can legitimately claim that his inconvenience when a call
drops, is as great as that of the calling party. And the receiving party may need to
make the second call, in which case he receives nothing, and the calling party receives
Re.1 for the additional expense made by the receiving party. All this betrays a
complete lack of intelligent care and deliberation in framing such a Regulation by the
Authority, rendering the Impugned Regulation manifestly arbitrary and unreasonable.

The Attorney General referred to a recent judgment of the Supreme Court in, DSC-
Viacon Ventures Pvt. Ltd. v. Lal Manohar Pandey, where the court said that certain
amount of guess work was unavoidable in matters of this nature. On this aspect, the
court commented:

The context in which this statement occurs … is very different from the present
context. This Court held that a toll can only be collected for maintaining a road. The
patches in which the road is not properly maintained should reduce proportionately
the amount of toll that is to be paid. As there was no data in that case to indicate the
extent of road length and the resultant inconvenience to users of the road, a certain
amount of guess work was said to be unavoidable. The present is a case in which we
are not informed as to how rupee one is computed, how three call drops per day has
been arrived at, or why the calling party alone is provided compensation. These
matters go out of mere guess work, and into the realm of unreasonableness, as
obviously, as has been held by us, there was no intelligent care and deliberation
before any of these parameters have been fixed.

The court viewed the situation from another angle:

… if an individual consumer were to go to the Consumer Forum for compensation for

call drops, he would have to prove that the call drop took place due to the fault of the
service provider. He would further have to prove that he has suffered a monetary loss
for which he has to be compensated, which the Explanatory Memorandum itself says
is impossible to compute. Thus, the Impugned Regulation completely avoids the
adjudicatory process, and legislatively lays down a penal consequence to a service
provider for a call drop taking place without the consumer being able to prove that he
is not himself responsible for such call drop and without proof of any actual monetary
loss. Whereas individual consumers, either before the Consumer Forum, or in a
dispute as a group with service providers before the TRAI, would fail in an action to
recover compensation for call drops, yet a statutory penalty is laid down, applicable
legislatively, and without any adjudication. This again makes the Impugned
Regulation manifestly arbitrary and unreasonable.

The court, thus, appraised the amendment to the regulation from several
perspectives and found it to be manifestly arbitrary. The judgement is significant for
two reasons. The test that arbitrariness violates the right to equality was established
for long. However, the principle was not applied in any case. In the cases were it was
claimed, there were other grounds for the court to give relief. Second, it was a case
where a delegated legislation as opposed to an executive action was being tested.
The court raised the threshold from arbitrary to ‘manifestly arbitrary’.

72
Post Script

Soon, in the Triple Talaq Case 38, the Supreme Court extended the arbitrariness
principle from subordinate legislation to legislation made by the legislature. Justice
Nariman noted:

...there is no rational distinction between the two types of legislation when it comes to
this ground of challenge under Article 14. The test of manifest arbitrariness … would
apply to invalidate legislation as well as subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining principle. Also, when
something is done which is excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to negate legislation as
well under Article 14.

Thus, a law made by the legislature which is capriciously, irrationally, without

determining principles, excessive or disproportionate will be struck down on the
grounds that it is ‘manifestly arbitrary’ violating the right to equality in Article 14 of the
constitution.

38
Shayara Bano v. Union of India, AIR 2017 SC 4609.
73
 Right to Equality: Does the Insolvency Code Meet the Muster

A company becomes insolvent when it is not able to pay money owed by it. The
insolvency can only be a cash-flow problem or structural in not having enough
assets. Insolvency is not a matter of chance, accident or misfortune. It is inherent in
a market economic system that businesses and entities would pursue new ideas and
initiatives. No matter how well intentioned or competently executed, some initiatives
would fail. Other times, a successful entity may not change adequately with the
changing context to find itself in financial difficulties. It is intrinsic feature that new
businesses will come and some will perish. In an intensively integrated economy,
failure of a business has wide effects, way beyond the founders of the business. It
affects the creditors, investing public, consumers, competition in the economy and
the economy as a whole. Attending to these, the principle has developed that an
honest debtor should be relieved of the debt and at the same time, the assets should
be put to productive use for the creditors to recover the debt.

India has had piecemeal provisions on insolvency spread in different laws. A review
of the insolvency law was thus described:

There is no single law in India that deals with insolvency and bankruptcy. Provisions
relating to insolvency and bankruptcy for companies can be found in the Sick
Industrial Companies (Special Provisions) Act, 1985, the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 and the Companies
Act, 2013. These statutes provide for creation of multiple fora such as Board of
Industrial and Financial Reconstruction (BIFR), Debts Recovery Tribunal (DRT) and
National Company Law Tribunal (NCLT) and their respective Appellate Tribunals.
Liquidation of companies is handled by the High Courts. Individual bankruptcy and
insolvency is dealt with under the Presidency Towns Insolvency Act, 1909, and the
Provincial Insolvency Act, 1920 and is dealt with by the Courts. The existing
framework for insolvency and bankruptcy is inadequate, ineffective and results in
undue delays in resolution, therefore, the proposed legislation. 

India enacted a comprehensive insolvency law in 2016, The Insolvency and

Bankruptcy Code, 2016 (the code). The code consolidated and reformed the
insolvency law and providing a framework for speedy resolution. The statement of
objects and reasons of the act noted:

The objective of the Insolvency and Bankruptcy Code, 2015 is to consolidate and
amend the laws relating to reorganization and insolvency resolution of corporate
persons, partnership firms and individuals in a time-bound manner for maximization
of value of assets of such persons, to promote entrepreneurship, availability of credit
and balance the interests of all the stakeholders including alteration in the priority of
payment of government dues and to establish an Insolvency and Bankruptcy Fund …
An effective legal framework for timely resolution of insolvency and bankruptcy
would support development of credit markets and encourage entrepreneurship. It
would also improve Ease of Doing Business, and facilitate more investments leading
to higher economic growth and development. 

74
The constitutional validity of several substantive and procedural aspects of the code
were challenged. The Supreme Court took a comprehensive review of the code. The
court noted:

The Code is first and foremost, a Code for reorganization and insolvency resolution of
corporate debtors. Unless such reorganization is effected in a time-bound manner, the
value of the assets of such persons will deplete. Therefore, maximization of value of
the assets of such persons so that they are efficiently run as going concerns is another
very important objective of the Code. This, in turn, will promote entrepreneurship as
the persons in management of the corporate debtor are removed and replaced by
entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is
brought back into the economic mainstream, it is able to repay its debts, which, in
turn, enhances the viability of credit in the hands of banks and financial institutions.
Above all, ultimately, the interests of all stakeholders are looked after as the corporate
debtor itself becomes a beneficiary of the resolution scheme - workers are paid, the
creditors in the long run will be repaid in full, and shareholders/investors are able to
maximize their investment.

The court noted that the code supports the development of the credit markets,
without liquidating the company:

… the primary focus of the legislation is to ensure revival and continuation of the
corporate debtor by protecting the corporate debtor from its own management and
from a corporate death by liquidation. The Code is thus a beneficial legislation which
puts the corporate debtor back on its feet, not being a mere recovery legislation for
creditors. The interests of the corporate debtor have, therefore, been bifurcated and
separated from that of its promoters / those who are in management. Thus, the
resolution process is not adversarial to the corporate debtor but, in fact, protective of
its interests.

Space of the Legislature

The constitution constitutes the three branches of the state, legislature, executive
and the judiciary. It recognises the complete competence of the legislature to make
law by enactments. At the same time, it gives the courts the power to do a judicial
review of the laws. There is an inherent overlap in the functions of the three arms of
the state and tension among them. The Supreme Court recognised that resolution of
this tension was done differently for the laws relating to economic activities. The
Supreme Court, over the decades, has extensively drawn from the American courts.
Bringing out the drawings from the American courts, the Supreme Court quoted from
R.K. Garg v. Union of India:39

Another rule of equal importance is that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights such as freedom of speech,
religion etc. It has been said by no less a person than Holmes, J., that the legislature
should be allowed some play in the joints, because it has to deal with complex
problems which do not admit of solution through any doctrinaire or strait-jacket
formula and this is particularly true in case of legislation dealing with economic

39
R.K. Garg v. Union of India, AIR 1981 SC 2138.
75
 matters, where, having regard to the nature of the problems required to be dealt with,
greater play in the joints has to be allowed to the legislature. The court should feel
more inclined to give judicial deference to legislative judgment in the field of
economic regulation than in other areas where fundamental human rights are
involved.

Legislature-executive introduce economic legislation to solve practical problems

which are complex, sensitive and also peculiar. There is often an element of hit and
trial. The court getting in the mix can only further confound the problem. The court
quoted from the Garg Case:40

The Court must always remember that "legislation is directed to practical problems,
that the economic mechanism is highly sensitive and complex, that many problems
are singular and contingent, that laws are not abstract propositions … Every
legislation, particularly in economic matters is essentially empiric and it is based on
experimentation or what one may call trial and error method and therefore it cannot
provide for all possible situations or anticipate all possible abuses. There may be
crudities and inequities in complicated experimental economic legislation but on that
account alone it cannot be struck down as invalid. … There may even be possibilities
of abuse, but that too cannot of itself be a ground for invalidating the legislation,
because it is not possible for any legislature to anticipate as if by some divine
prescience, distortions and abuses of its legislation which may be made by those
subject to its provisions and to provide against such distortions and abuses. Indeed,
howsoever great may be the care bestowed on its framing, it is difficult to conceive of
a legislation which is not capable of being abused by perverted human ingenuity. The
Court must therefore adjudge the constitutionality of such legislation by the generality
of its provisions and not by its crudities or inequities or by the possibilities of abuse of
any of its provisions. If any crudities, inequities or possibilities of abuse come to light,
the legislature can always step in and enact suitable amendatory legislation. That is
the essence of pragmatic approach which must guide and inspire the legislature in
dealing with complex economic issues.

The courts do not have the competencies and expertise to judge economic issues
and their implications. The court quoted on it from the Garg Case:

… The Court would not have the necessary competence and expertise to adjudicate
upon such an economic issue. The Court cannot possibly assess or evaluate what
would be the impact of a particular immunity or exemption and whether it would
serve the purpose in view or not. There are so many imponderables that would enter
into the determination that it would be wise for the Court not to hazard an opinion
where even economists may differ. The Court must while examining the
constitutional validity of a legislation of this kind, "be resilient, not rigid, forward
looking, not static, liberal, not verbal" and the Court must always bear in mind the
constitutional proposition enunciated by the Supreme Court of the United States in
Munn v. Illinois [94 US 13], namely, "that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies". The Court must defer to
legislative judgment in matters relating to social and economic policies and must not
interfere, unless the exercise of legislative judgment appears to be palpably arbitrary.

40
R.K. Garg v. Union of India, AIR 1981 SC 2138.
76
The court noted that there was always a presumption in favour of constitutional
validity of any legislation and the balancing was to be ‘with the primary objective of
accelerating economic growth rather than suspending its growth by doubting its
constitutional efficacy.’41 The court further quoted the following from DG of Foreign
Trade v. Kanak Exports:42

It is well settled that in complex economic matters every decision is necessarily

empiric and it is based on experimentation or what one may call trial and error
method and therefore, its validity cannot be tested on any rigid prior considerations or
on the application of any straitjacket formula. … laws, including executive action
relating to economic activities should be viewed with greater latitude than laws
touching civil rights such as freedom of speech, religion, etc. that the legislature
should be allowed some play in the joints because it has to deal with complex
problems which do not admit of solution through any doctrine or straitjacket formula
and this is particularly true in case of legislation dealing with economic matters,
where having regard to the nature of the problems greater latitude require to be
allowed to the legislature.

The court having set the context for judicial review, moved to review the code. The
argument for the constitutional violation of the right to equality was that the code
recognised the creditors into two types, a financial creditor and an operational
creditor. It treated the two differently in significant aspects. The differential treatment
was on substantive and procedural grounds. It was contended that the classification
between financial investor and operational investor was not only ‘discriminatory, but
also manifestly arbitrary.’

Right to Equality: Intelligible Differentia Principle

The first argument was the classification into financial investor and operational
investor was discriminatory and violative of the right to equality. The Supreme Court
noted the well-established ‘intelligible differentia’ test for judging equality:

The tests for violation of Article 14 of the Constitution of India, when legislation is
challenged as being violative of the principle of equality, have been settled by this
Court time and again. Since equality is only among equals, no discrimination results if
… there is an intelligible differentia which separates two kinds of creditors so long as
there is some rational relation between the creditors so differentiated, with the object
sought to be achieved by the legislation. This aspect of Article 14 has been laid down
in judgments too numerous to cite, from the very inception.

The court drew on a chain of cases, culminating in the CBI case, to explore the
principle. We will review the CBI Case.

The CBI Case

41
Bhavesh D. Parish v. Union of India, AIR 2000 SC 2047.
42
DG of Foreign Trade v. Kanak Exports, AIR 2016 SC (Civ) 114.
77
The Delhi Special Police Establishment Act, 1946 was amended by Section 6-A in
2003 providing that for conducting any investigation of corruption against an officer
of the level of Joint Secretary or above, the previous approval of the Central
Government has to be taken. Before the amendment, there was a directive of the
government. The reason for the directive was:43

… to protect decision-making-level officers from the threat and ignominy of

malicious and vexatious inquiries/investigations and to give protection to officers at
the decision-making level and to relieve them of the anxiety from the likelihood of
harassment for taking honest decisions. It was said that absence of such protection to
them could adversely affect the efficiency and efficacy of these institutions because of
the tendency of such officers to avoid taking any decisions which could later lead to
harassment by any malicious and vexatious inquiries/investigations.

The constitutional validity of the amendment was challenged on the grounds of right
to equality. The court stated the intelligible differentia principle:

The Constitution permits the State to determine, by the process of classification, what
should be regarded as a class for purposes of legislation and in relation to law enacted
on a particular subject. There is bound to be some degree of inequality when there is
segregation of one class from the other. However, such segregation must be rational
and not artificial or evasive. In other words, the classification must not only be based
on some qualities or characteristics, which are to be found in all persons grouped
together and not in others who are left out but those qualities or characteristics must
have a reasonable relation to the object of the legislation. Differentia which is the
basis of classification must be sound and must have reasonable relation to the object
of the legislation. If the object itself is discriminatory, then explanation that
classification is reasonable having rational relation to the object sought to be achieved
is immaterial.

The court applied the principle to the case before it:

… [the] classification which is made in Section 6-A on the basis of status in the
Government service is not permissible under Article 14 as it defeats the purpose of
finding prima facie truth into the allegations of graft, which amount to an offence
under the PC Act, 1988. Can there be sound differentiation between corrupt public
servants based on their status? Surely not, because irrespective of their status or
position, corrupt public servants are corrupters of public power. The corrupt public
servants, whether high or low, are birds of the same feather and must be confronted
with the process of investigation and inquiry equally. Based on the position or status
in service, no distinction can be made between public servants against whom there are
allegations amounting to an offence under the PC Act, 1988.

The court further noted:

Corruption is an enemy of the nation and tracking down corrupt public servants and
punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to
justify the classification which has been made in Section 6-A because the goal of law

43
Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, AIR 2014 SC 2140.
78
 in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public
servants are warned through such a legislative measure that corrupt public servants
have to face very serious consequences. … The purpose of a law may be either the
elimination of a public mischief or the achievement of some positive public good. The
classification made in Section 6-A neither eliminates public mischief nor achieves
some positive public good. On the other hand, it advances public mischief and
protects the crime-doer. The provision thwarts an independent, unhampered,
unbiased, efficient and fearless inquiry/investigation to track down the corrupt public
servants.

The Current Insolvency Code Case

Coming back to the current case, the insolvency code, several substantive and
procedural aspects of the code were challenged on the ground that the code made a
distinction between financial creditor and operational creditor and discriminated
against operational creditor. The court noted on the classification of financial creditor
and operational creditor.

A perusal of the definition of "financial creditor" and "financial debt" makes it clear
that a financial debt is a debt together with interest, if any, which is disbursed against
the consideration for time value of money. … On the other hand, an "operational
debt" would include a claim in respect of the provision of goods or services, including
employment, or a debt in respect of payment of dues arising under any law and
payable to the Government or any local authority.

Of the several provisions, we will take up the challenge on Section 53 of the code as
an illustration. The section provides the order and priority in which the assets of a
company are to be distributed in the event of liquidation. The argument for it being
discriminatory was:

… operational creditors will never get anything as they rank below all other creditors,
including other unsecured creditors who happen to be financial creditors. This …
would render Section 53 … discriminatory … and thus, violative of Article 14 of the
Constitution of India.

The court quoted from the Bankruptcy Law Reforms Committee Report, which led to
and became the basis for the enactment of the Insolvency Code:

The Committee has recommended to keep the right of the Central and State
Government in the distribution waterfall in liquidation at a priority below the
unsecured financial creditors in addition to all kinds of secured creditors for
promoting the availability of credit and developing a market for unsecured financing
(including the development of bond markets). In the long run, this would increase the
availability of finance, reduce the cost of capital, promote entrepreneurship and lead
to faster economic growth. The government also will be the beneficiary of this
process as economic growth will increase revenues. Further, efficiency enhancement
and consequent greater value capture through the proposed insolvency regime will
bring in additional gains to both the economy and the exchequer."

79
The Report provided that for the other kind of creditors, the global practice is to give
the first claim to the secured creditor. The report recommended ‘the waterfall in
Liquidation’ should be as follows:

1. Costs of IRP [Insolvency Resolution Proceeding] and liquidation.

2. Secured creditors and Workmen dues capped up to three months from the start of
IRP.

3. Employees capped up to three months.

4. Dues to unsecured financial creditors, debts payable to workmen in respect of the

period beginning twelve months before the liquidation commencement date and
ending three months before the liquidation commencement date;

5. Any amount due to the State Government and the Central Government in respect of
the whole or any part of the period of two years before the liquidation commencement
date; any debts of the secured creditor for any amount unpaid following the
enforcement of security interest

6. Remaining debt

7. Surplus to shareholders.

The court applied the intelligible differentia test and concluded:

It will be seen that the reason for differentiating between financial debts, which are
secured, and operational debts, which are unsecured, is in the relative importance of
the two types of debts when it comes to the object sought to be achieved by the
Insolvency Code. We have already seen that repayment of financial debts infuses
capital into the economy inasmuch as banks and financial institutions are able, with
the money that has been paid back, to further lend such money to other entrepreneurs
for their businesses. This rationale creates an intelligible differentia between financial
debts and operational debts, which are unsecured, which is directly related to the
object sought to be achieved by the Code. In any case, workmen's dues, which are
also unsecured debts, have traditionally been placed above most other debts. Thus, it
can be seen that unsecured debts are of various kinds, and so long as there is some
legitimate interest sought to be protected, having relation to the object sought to be
achieved by the statute in question, Article 14 does not get infracted. For these
reasons, the challenge to Section 53 of the Code must also fail.

Manifestly Arbitrary

The second argument before the court was Section 53 put unsecured creditors at the
end and thus was ‘manifestly arbitrary’ and violative of Article 14. The court drew on
‘manifestly arbitrary’ test from the following two recent judgement.

The Cellular Operators Case

80
The telecom companies are given long term licences to operate mobile phone
services in the different territories of India. 44 Within the terms of the licence, the
phone companies are to develop infrastructure and provide connectivity. Telecom
Regulatory Authority of India Act constitutes the body Telecom Regulatory Authority
of India (TRAI) and gives it powers to make regulations for the telecom sector. The
customers experienced ‘call drop’. A customer would be able to connect with the
other party and midway, the connection would get snapped. TRAI amended the
Telecom Consumers Protection Regulations in 2015 to deal with it. The amendment
provided that for a ‘call drop’, the service provider through whom the call was
initiated, would credit to the account of the calling customer Rs. 1 for a call drop,
subject to a maximum of three call drops a day. TRAI had recorded the reason for
this in the memorandum as:

After a careful analysis, the Authority has come to the conclusion that call drops are
instances of deficiency in service delivery … which cause inconvenience to the
consumers, and hence, it would be appropriate to put in place a mechanism for
compensating the consumers in the event of dropped calls. The Authority is of the
opinion that compensatory mechanism should be kept simple for the ease of consumer
understanding and its implementation …

The Cellular Operators challenged the TRAI regulation on the grounds that it was
arbitrary provision to penalise the service provider. The Supreme Court noted:

We have already seen that one of the tests for challenging the constitutionality of
subordinate legislation is that subordinate legislation should not be manifestly
arbitrary.

For the test of "manifest arbitrariness", it relied on earlier judgements: 45

In order to strike down a delegated legislation as arbitrary it has to be established that

there is manifest arbitrariness. In order to be described as arbitrary, it must be shown
that it was not reasonable and manifestly arbitrary. The expression "arbitrarily"
means: in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgment, depending on the will
alone.

In appraising the call drop provision, the court noted:

… the Regulation must, in order to pass constitutional muster, be as a result of

intelligent care and deliberation, that is, the choice of a course which reason dictates.
Any arbitrary invasion of a fundamental right cannot be said to contain this quality.

There was much contest on the technical reasons for call drops. The court noted:

44
Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR
2016 SC 2336.
45
Sharma Transport v. Government of Andhra Pradesh, AIR 2002 SC 322.
81
 According to the learned Attorney General, the cause for call drops is twofold - one
owing to the fault of the consumer, and the other owing to the fault of the service
provider. … an average of 36.9% can be call drops owing to the fault of the
consumer. If this is so, the … Regulation's very basis is destroyed: the Regulation is
based on the fact that the service provider is 100% at fault. …This being the case, it is
clear that the service provider is made to pay for call drops that may not be
attributable to his fault, and the consumer receives compensation for a call drop that
may be attributable to the fault of the consumer himself, and that makes the Impugned
Regulation a regulation framed without intelligent care and deliberation.

The court noted that the TRAI’s own documents had noted that 36.9% call drops
were because of fault at the consumer's end. The court concluded:

Instead of having a relook at the problem in the light of the said technical paper, the
Authority has gone ahead with the Impugned Regulation, which states that the said
Regulation has been brought into force because of deficiency of service in service
providers leading to call drops. The very basis of this statement contained in the
Explanatory Memorandum to the Impugned Regulation is found by the self-same
Authority to be incorrect only a few days after publishing the Impugned Regulation.
This itself shows the manifest arbitrariness on the part of the TRAI, which has not
bothered to have a relook into the said problem. For all the aforesaid reasons, we find
that the Impugned Regulation is manifestly arbitrary and therefore, violative of
Article 14 …

The court in the current case then explored from the Triple Talaq Case.

The Triple Talaq Case

Within the Muslim personal law, the husband could divorce his wife, by announcing
'talak, talak, talak' to the wife. The constitutional validity of the law was challenged on
grounds including, the right to equality. The Supreme Court, reviewing the court
judgements on the arbitrariness principle, summarise it:

.. it is clear that …[a] legislation can be struck down on the ground that it is
"arbitrary" under Article 14 … if a constitutional infirmity is found, Article 14 will
interdict such infirmity. And a constitutional infirmity is found in Article 14 itself
whenever legislation is "manifestly arbitrary"; i.e. when it is not fair, not reasonable,
discriminatory, not transparent, capricious, biased, with favouritism or nepotism and
not in pursuit of promotion of healthy competition and equitable treatment. Positively
speaking, it should conform to norms which are rational, informed with reason and
guided by public interest, etc.

The court extensively quoted from the CBI case and noted that the court did not
apply the manifest arbitrariness principle as it was unnecessary:

Since the Court ultimately struck down Section 6-A on the ground that it was
discriminatory, it became unnecessary to pronounce on one of the questions referred
to it, namely, as to whether arbitrariness could be a ground for invalidating legislation
under Article 14.

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The court then turned to the Cellular Case and concluded:

To complete the picture, it is important to note that subordinate legislation can be

struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of
the Constitution.

The court concluded:

… it was settled law that subordinate legislation can be challenged on any of the
grounds available for challenge against plenary legislation. This being the case, there
is no rational distinction between the two types of legislation when it comes to this
ground of challenge under Article 14. The test of manifest arbitrariness, therefore, …
would apply to invalidate legislation as well as subordinate legislation under Article
14. Manifest arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining principle. Also, when
something is done which is excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to negate legislation as
well under Article 14.

Insolvency Code: Manifestly Arbitrary

The court explored the basis for making the distinction between financial creditors
and operational creditor in the Bankruptcy Law Reforms Committee Report and did
not find it arbitrary. Thus, it did not agree with the petitioners that the provision was
manifestly arbitrary and violative of Article 14. In conclusion, the court noted on the
code:

The Insolvency Code is a legislation which deals with economic matters and, in the
larger sense, deals with the economy of the country as a whole. Earlier experiments,
as we have seen, in terms of legislations having failed, 'trial' having led to repeated
'errors', ultimately led to the enactment of the Code. The experiment contained in the
Code, judged by the generality of its provisions and not by so-called crudities and
inequities that have been pointed out by the petitioners, passes constitutional muster.
To stay experimentation in things economic is a grave responsibility, and denial of the
right to experiment is fraught with serious consequences to the nation. We have also
seen that the working of the Code is being monitored by the Central Government by
Expert Committees that have been set up in this behalf. Amendments have been made
in the short period in which the Code has operated, both to the Code itself as well as
to subordinate legislation made under it. This process is an ongoing process which
involves all stakeholders, including the petitioners. … The result is that all the
petitions will now be disposed of in terms of this judgment.

83
Freedom of Speech

84
 Romesh Thappar v. The State of Madras

Romesh Thappar was the printer, publisher and editor of a newly started weekly
English journal called CROSS ROADS.46 The journal was printed and published in
Bombay, now Mumbai. The Government of Madras imposed a ban on the entry and
circulation of the journal in the State under the Madras Maintenance of Public Order
Act, 1949. Romesh Thappar challenged the ban as violative of his fundamental right
of speech and expression under Article 19(1)(a).

The Madras government first argued that Article 226 gives concurrent jurisdiction to
the High Court. It contended that ‘as a matter of orderly procedure’ and also referring
to American decisions, the party should exhaust remedies before the High Court
before coming to the Supreme Court.

Patanjali Sastri J for the Supreme Court disagreed:

We are of opinion that neither the instances mentioned by the learned Advocate-
General nor the American decisions referred to by him are really analogous to the
remedy afforded by Art. 32 of the Indian Constitution. … Article 32 provides a
"guaranteed" remedy for the enforcement of those rights, and this remedial right is
itself made a fundamental right by being included in part III. This Court is thus
constituted the protector and guarantor of fundamental rights, and it cannot,
consistently with the responsibility so laid upon it, refuse to entertain applications
seeking protection against infringements of such rights. No similar provision is to be
found in the Constitution of the United States and we do not consider that the
American decisions are in point.

Turning to the merits, the court explored on the freedom of speech and expression. It
noted:

… there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is ensured by the freedom of circulation
"Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value": Ex parte Jackson
96 U. S. 727. See also Lovell v. City of Griffin, 303 U. S. 444. It is therefore perfectly
clear that the order of the Government of Madras would be a violation of the
petitioner's fundamental right under Art. 19(1)(a), unless … it … is saved by the
reservations mentioned in Cl. (2) of Art. 19.

The judge appraising the nature of restrictions further noted:

Thus, very narrow and stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression and this was doubtless due to
the realisation that freedom of speech and of the press lay at the foundation of all
democratic organisations, for without free political discussion no public education, so
essential for the proper functioning of the processes of popular Government, is
possible. A freedom of such amplitude might involve risks of a abuse. But the framers

46
Romesh Thappar v. The State of Madras, AIR 1950 SC 124
85
 of the Constitution may well have reflected with Madison who was 'the leading spirit
in the preparation of the First Amendment of the Federal Constitution", that "it is
better to leave a few of its noxious branches to their luxuriant growth than, by pruning
them away, to injure the vigour of those yielding the proper fruits" (Quoted in Near v.
Minnesotta 283 U. S 607 at 717-8 ).

The court them moved to appraise the basis for imposing the ban.

86
 Sakal Papers (P) Ltd. v. Union of India

The Parliament enacted a legislation, the Newspaper (Price and Page) Act, 1956. 47
The Act gave the power to the government to regulate the price of the newspaper,
with reference to the number of pages and proportion of space that could be used for
advertisement. The legislation was giving effect to the recommendations of the Press
Commission, which the government had created to explore and recommend on all
aspects of the working of the newspapers.

The Press Commission had noted that all newspapers published advertisements. The
space allocated to advertisements varied from 46% to 59%. Advertisements brought
a substantial revenue to the newspapers enabling them to sell the newspaper below
the cost of production. Oder established newspapers, with a large and stable
advertisement revenue, were in an advantageous position. They could squeeze out a
new newspaper. This was unfair competition to the new and small newspapers. The
small newspapers to have a fair chance and opportunities to put forward their views
and opinions. To secure this, the Press Commission recommended a cap on the
proportion of space that could be put to advertising. Further, taking account of all
factors of the economics of the newspapers, including cost of newsprint, salaries,
commissions and overheads, it prescribed a price schedule. The price schedule
prescribed different number of pages and corresponding prices. To give effect to the
legislation, the Parliament enacted the legislation. The preamble of the legislation
read:

"An Act to provide for the regulation of the prices charged for newspapers in relation
to their pages and of matters connected therewith for the purpose of preventing unfair
competition among newspapers so that newspapers may have fuller opportunities of
freedom of expression.''

The act gave the power to the government to settle the prices for different page
numbers in the newspapers. Following the law, the government issued an order
prescribing the prices.

Sakal’s Position

Sakal Papers Private Limited was a company publishing a newspaper in Marathi from
Pune, named Sakal. The shareholders of the company along with the company
challenged the constitutional validity of the law. It pointed out that Sakal has 34
pages. Following the law, the newspaper will either have to reduce the pages to 24
or increase the price. If they reduce the pages, it will diminish dissemination of news
and views. If they increase the price, it will lower the circulation and reduce their
reach. Thus, the law violated their freedom of speech and expression, stated in
Article 19(1)(a).

Government’s Position

47
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
87
The Government of India claimed that the law was enacted to prevent unfair
competition among newspapers and rise of monopolies. The government argued
that the law did not restrict the right of the newspapers to propagate their ideas. They
could always increase the space by increasing the price. The government of India
contended that the price increase will not affect the circulation and even if it does, it
does not violate article 19. The government also contended that the Act does not
directly or indirectly deal with the with the subject of freedom of speech and
expression. As a result, the question of violation of Art. 19(1)(a) does not arise. To
the contrary, the effect of the Act would be an orderly conduct of the newspaper
business and strengthen the freedom of speech and expression. Thus, the
government argued that it neither intended to nor the effect of the law is to abridge
the freedom of speech and expression.

We will explore different aspects of the judgements of the court.

Press and Freedom of Speech and Expression

The court noted that increasing the price will lead to reduction in circulation. Limiting
advertisement would need to be of set by increasing the price, leading to the same
result. Decrease in circulation will lead to lowering of business and even shutting
down of the press. The question was whether the freedom of speech and expression
extend to the newspapers? Building on the previous cases, the Supreme Court
noted:

Our Constitution does not expressly provide for the freedom of press but it has been
held by this Court that this freedom is included in "freedom of speech and expression"
guaranteed by cl. (1) (a) of Art. 19. … The right to propagate one's ideas is inherent in
the conception of freedom of speech and expression. For the purpose of propagating
his idea every citizen has a right to publish them, to disseminate them and to circulate
them. He is entitled to do so either by word of mouth or by writing. The right
guaranteed thus extends … not merely to the matter which he is entitled to circulate,
but also to the volume of circulation. In other words, the citizen is entitled to
propagate his views and reach any class and number of readers as he chooses.

The court noted that the fundamental rights have to be given a wider reach than a
narrow one. It noted:

It must be borne in mind that the Constitution must be interpreted in a broad way and
not in a narrow and pedantic sense, Certain rights have been enshrined in our
Constitution as fundamental and, therefore, while considering the nature and content
of those rights the Court must not be too astute to interpret the language of the
Constitution in so literal a sense as to whittle them down. On the other hand the Court
must interpret the Constitution in a manner which would enable the citizen to enjoy
the rights guaranteed by it in the fullest measure …Bearing this principle in mind it
would be clear, that the right to freedom of speech and expression carries with it the
right to publish and circulate one's ideas, opinions and views with compete freedom
and by resorting to any available means of publication subject again to such
restrictions as could be legitimately imposed under cl. (2) of Art. 19.

Direct and Indirect Effects

88
The government contended that the object of the law was to prevent unfair
competition and rise of monopolies in the newspaper business. With it, it was
strengthening smaller newspapers and promoting freedom of speech and
expression. Thus, there was no question of the law violating Article 19(1)(a). The
court noted that the object of the law was not a relevant consideration. What was
relevant was whether the law directly affect the freedom of speech and expression.
The court noted:

The only question that would then remain would be whether the impugned enactment
directly impinges on the guarantee of freedom of speech and expression. It would
directly impinge on this freedom either by placing restraint upon it or by placing
restraint upon something which is an essential part of that freedom. The freedom of a
newspaper to publish any number of pages or to circulate it to any number of persons
is each an integral part of the freedom of speech and expression. A restraint placed
upon either of them would be a direct infringement of the right of freedom of speech
and expression.

The court illustrated it. It noted:

Let us suppose that the enactment had said that newspaper 'A' or newspaper 'B' …
shall not have more than a specified number of subscribers. Could such a law be valid
in the face of the guarantee under Art. 19(1)(a)? The answer must unhesitatingly be
no, because such a law would be recognised as directly impinging upon the freedom
of expression which encompasses freedom of circulation and to restrain the citizen
from propagating his views to any other beyond the limit or number prescribed by the
statute. If this were so, the fact that the legislation achieves the same result by means
of the schedule or rates makes no difference and the impact on the freedom would still
be direct notwithstanding that it does not appear so on its face.

The court recognised that the law ‘directly prohibits a newspaper from exercising
that right’. It noted:

This is a direct invasion of the right under Art. 19(1)(a) and not an incidental or
problematic effect thereon as was found in the Express News papers case, 1959 SCR
12: (AIR 1958 SC 578). … The distinction between direct and indirect effect of a law
upon the freedom of press has been adverted to in that case [by] Bhagwati, J., who
spoke for the Court:

"All the consequences which have been visualized in this behalf by the
petitioners, viz., the tendency to curtail circulation and thereby narrow the
scope of dissemination of information, fetters on the petitioners freedom to
choose the means of exercising the right, likelihood of the independence the
press being undermined by having to seek government aid;. . . ... . .. . . etc,
would be remote and depend upon various factors which may or may not
come into play. Unless these were the direct or inevitable consequences of the
measures enacted in the impugned Act, it would not be possible to strike down
the legislation as having that effect and operation."

89
 The court noted that the act was intended to affect circulation to encourage
smaller newspapers and impede larger papers with better financial strength.
This directly affected freedom of speech. The court noted:

The impugned law far from being one, which merely interferes with the right
of freedom of speech incidentally, does so directly though it seeks to achieve
the end by purporting to regulate the business aspect of a newspaper. Such a
course is not permissible and the courts must be ever vigilant in guarding
perhaps the most precious of all the freedoms guaranteed by our Constitution.
The reason for this is obvious. The freedom of speech and expression of
opinion is of paramount importance under a democratic Constitution which
envisages changes in the composition of legislatures and governments and
must be preserved. No doubt, the law in question was made upon the
recommendation of the Press Commission but since its object is to affect
directly the right of circulation of newspapers which would necessarily
undermine their power to influence public opinion it cannot but be regarded as
a dangerous weapon which is capable of being used against democracy itself.

Restrictions Under Article 19

Of course, the freedom of speech and expression is not unlimited. It is subject to

restrictions put on it in Article 19(2). The article permits only ‘reasonable restrictions’
‘the interests of the security of the State, friendly relations with foreign States, public
order decency or morality or in relation to contempt of court, defamation or
incitement to an offence.’ The law would be valid if it could qualify under Article
19(2). We will explore different aspects of it.

The court reviewed the prior judgements on Article 19(2):

In Express Newspapers (Private) Ltd. v. Union of India, 1959 SCR 12: (AIR 1958 SC
578), this Court has laid down that while there is no immunity to the press from the
operation of the general laws it would not be legitimate to subject the press to laws
which take away or abridge the freedom of speech and expression or adopt measures
calculated and intended to curtail circulation and thereby narrow the scope of
dissemination of information or fetter its freedom … This Court further pointed out
that, a law which lays upon the Press excessive and prohibitive burdens which would
restrict the circulation of a newspaper would not be saved by Art. 19(2) of the
Constitution,

The court noted from another judgement:

… this Court pointed out that very narrow and stringent limits have been set to
permissible legislative abridgment of the right of freedom of speech and expression.
In State of Madras v. V.G. Row, 1952 SCR 597 : (AIR 1952 SC 196), the question of
the reasonableness of restrictions which could be imposed upon a fundamental right
has been considered. This Court has pointed out that the nature of the right alleged to
have been infringed, the underlying purpose of the restrictions imposed, the extent
and scope of the evil sought to be remedied thereby, the disproportion of the
imposition and the prevailing conditions at that time should all enter into the judicial
verdict. In Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., 1954

90
 SCR 674 ; (AIR 1954 SC this Court has pointed out that in construing the
Constitution it is the substance and the practical result of the act of the state that
should be considered rather than its purely legal aspect. The correct approach in such
cases should be to enquire as to what in substance is the loss or injury caused to the
citizen and not merely what manner and method has been adopted by the state in
placing the restriction. In Virendra v. State of Punjab, 1958 SCR 308 : ( (S) AIR 1957
SC 896), this Court has observed at p. 319 (of SCR) : (at p. 900 of AIR), as follows :"

"It is certainly a serious encroachment on the valuable and cherished right of

freedom of speech and expression if a newspaper is prevented from publishing
its own or the views of its correspondents relating to or concerning what may
be the burning topic of the day."

The court noted that the law curtails advertisement. If advertisement is curtailed, the
price of the paper will need to be increased. This in turn will reduce circulation. ‘This
would be no remote, but a direct consequence of curtailment of advertisements.’ The
court noted:

We would consider this matter in another way also. The advertisement revenue of a
newspaper is proportionate to its circulation. Thus the higher the circulation of a
newspaper the larger would be its advertisement revenue. So if a newspaper with a
high circulation were to raise its price its circulation would go down and this in turn
would bring down also the advertisement revenue. That would force the newspaper
either to close down or to raise its price. Raising the price further would affect the
circulation still more and thus a vicious cycle would set in which would ultimately
end in the closure of the newspaper. If, on the other hand, the space for advertisement
is reduced the earnings of a newspaper would go down and it would either have to run
at a loss or close down or raise its price. The object of the Act in regulating the space
for advertisements is stated to be to prevent 'unfair' competition. It is thus directed
against circulation of a newspaper. When a law is intended to bring about this result
there would be a direct interference with the right of freedom of speech and
expression guaranteed trader Art. 19(1)(a).

The court noted:

Since the very object of the impugned law is to affect the circulation of certain
newspapers which are said to be practising unfair competition it is difficult to
appreciate how it could be sustained. The right to freedom of speech and expression is
an individual right guaranteed to every citizen by Art. 19(1)(a)) of the Constitution.
There is nothing in cl. (2) of Art. 19 which permits the State to abridge this right on
the ground of conferring benefits upon the public in general or upon a section of the
public. It is not open to the State to curtail or infringe the freedom of speech of one
for promoting the general welfare of a section or a group of people unless its action
could be justified under a law competent under cl.(2) of Art. 19. It is admitted that the
impugned provisions cannot be justified on the grounds referred to in the aforesaid
clause.

The government noted that there were two aspects to the activities of the
newspaper, ‘the dissemination of news and views and the commercial aspect.’ The
commercial aspect is covered by Article 19(1)(g). Restrictions on this can be put

91
under Article 19(6) in the interest of general public. Thus, the restriction imposed is
justified. Article 19(6) reads:

"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes or prevent the State from making any law imposing in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause..."

The court disagreed with the contention of the government. It noted:

It may well be within the power of the State to place, in the interest of the general
public, restrictions upon the right of a citizen to carry on business but it is not open to
the State to achieve this object by directly and immediately curtailing any other
freedom of that citizen guaranteed by the Constitution and which is not susceptible of
abridgment on the same grounds as are set out in cl. (6) of Art. 19. Therefore, the
right of freedom of speech cannot be taken away with the object of placing
restrictions on the business activities of a citizen. Freedom of speech can be restricted
only in the interests of the security of the State, friendly relations with foreign States,
public order decency or morality or in relation to contempt of court, defamation or
incitement to an offence. It cannot, like the freedom to carry on business, be curtailed
in the interest of the general public. If a law directly affecting it is challenged, it is no
answer that the restrictions enacted by it are justifiable under cls. (3) to (6). For the
scheme of Art. 19 is to enumerate different freedoms separately and then to specify
the extent of restrictions to which they may be subjected and the objects for securing
which this could be done. A citizen is entitled to enjoy each and every one of the
freedoms together and cl. (1) does not prefer one freedom to another. That is the plain
meaning of this clause. It follows from this that the State cannot make a law which
directly restricts one freedom even for securing the better enjoyment of another
freedom. All the greater reason, therefore, for holding that the State cannot directly
restrict one freedom by placing an otherwise permissible restriction on another
freedom.

Viewing the question from this angle it would be seen that the reference to the Press
being a business and to the restriction imposed by the impugned Act being referable
or justified as a proper restriction on the right to carry on the business of publishing a
newspaper would be wholly irrelevant for considering whether the impugned Act
infringes or does not infringe the freedom guaranteed by Art. 19(1)(a) .

The court noted that the ‘order cannot be sustained upon the ground that it merely
implements a recommendation of the Press Commission and was thus not made
with an ulterior object.’ The court noted:

Similarly, Since the Act taken in conjunction with the Order made thereunder
operates as a restraint on the freedom of speech and expression of newspapers the
mere fact that its object was to suppress unfair practices by newspapers would not
validate them. Carrying on unfair practices may be a matter for condemnation. But
that would be no ground for placing restrictions on the right of circulation.

92
The court noted:

It was argued that the object of the Act was to prevent monopolies and that
monopolies are obnoxious. We will assume that monopolies are always against public
interest and deserve to be suppressed. Even so, upon the view we have taken that the
intendment of the Act and the direct and immediate effect of the Act taken along with
the impugned Order was to interfere with the freedom of circulation of newspapers
the circumstance that its object was to suppress monopolies and prevent unfair
practices is of no assistance.

The legitimacy of the result intended to be achieved does not necessarily imply that
every means to achieve it is permissible; for even if the end is desirable and
permissible, the means employed must not transgress the limits laid down by the
Constitution. If they directly, impinge on any of the fundamental rights guaranteed by
the Constitution it is no answer when the constitutionality, of the measure is
challenged that apart from the fundamental right infringe the provision is otherwise
legal.

Finally it was said that one of its objects is to give some kind of protection to small or
newly started newspapers and, therefore, the Act is good. Such an object may be
desirable but for attaining it the State cannot make inroads on the right of other
newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of
helping them and it is for the State to search for them but the one they have chosen
falls foul of the Constitution.

To repeat, the only restrictions which may be imposed on the rights of an individual
under Art.19(1)(a) are those which cl.(2) of Art.19 permits and no other.

93
 Express Newspaper (Private) Ltd. v The Union of India

The newspaper industry in India started out as individual newspapers founded by

leaders in the national, political, social and economic fields. 48 However, it developed
characteristics of a profit-making industry in which big industrialists invested money
and combines controlling several newspapers all over the country also became the
special feature of this development. The Working Journalists except for the
comparatively large number that were found concentrated in the big metropolitan
cities, were scattered all over the country and for the last ten years and more
agitated that some means should be found by which those working in the newspaper
industry were enabled to have their wages and salaries, their dearness allowance
and other allowances, their retirement benefits, their rules of leave and conditions of
service, enquire into by some impartial agency or authority, who would be
empowered to fix just and reasonable terms and conditions of service for Working
Journalists as a whole.

Following the recommendations of the Press Commission, which explored all

aspects of working of the newspaper establishment, the Parliament enacted the
Working Journalists and Other Newspaper Employees (Conditions of Service and
Miscellaneous Provisions) Act (45 of 1955), providing for the fixation of the wages
and salaries of journalists and others working in the newspaper establishment. The
law affected the newspaper establishment and several petitions came before the
Supreme Court challenging the constitutionality of the law on different grounds.

One of the grounds of challenge was that it violated the freedom of speech and
expression. The Supreme Court noted on different aspects of it.

Freedom of Press

The Supreme Court noted on the freedom of speech and expression including the
freedom of press. It noted:

There is paucity of authority in India on the nature, scope and extent of this
fundamental right to freedom of speech and expression enshrined in Art. 19 (1) (a) of
the Constitution. The first case which came up for decision before this Court was that
of Romesh Thapper v. State of Madras 1950 S C R 594 : (AIR 1950 S C 124) (W).
Brij Bhushan v. State of Delhi, 1950 S C R 605, : (AIR 1950 S C 129) (Z) was the
next case …

These are the only two decisions of this Court which involve the interpretation of Art.
19 (1) (a) and they only lay down that the freedom of speech and expression includes
freedom of propagation of ideas which freedom is ensured by the freedom of
circulation and that the liberty of the press is an essential part of the right to freedom
of speech and expression and that liberty of the press consists in allowing no previous
restraint upon publication.

48
Express Newspaper (Private) Ltd. v The Union of India, AIR 1958 SC 578
94
 There is however, a considerable body of authority to be found in the decisions of the
Supreme Court of the United States of America bearing on this concept of the
freedom of speech and expression. Amendment I of that Constitution lays down :

"Congress shall make no law....abridging the freedom of speech or of the press....."

It is trite to observe that the fundamental right to the freedom of speech and
expression enshrined in Art 19 (1) (a) of our Constitution is based on these provisions
in Amendment I of the Constitution of the United States of America and it would be
therefore legitimate and proper to refer to those decisions of the Supreme Court of the
United States of America in order to appreciate the true nature, scope and extent of
this right …

After a review of the USA judgements, the court summarised:

It is clear from the above that in the United States of America:

(a) the freedom of speech comprehends the freedom of press and the freedom of
speech and press are fundamental personal right of the citizens;

(b) the freedom of the press rests on the assumption that the widest possible
dissemination of information from diverse and antagonistic sources is essential to the
welfare of the public;

(c) Such freedom is the foundation of free Government of a free people;

(d) the purpose of such a guarantee is to prevent public authorities from assuming the
guardianship of the public mind; and

(e) freedom of press involves freedom of employment or non-employment of the

necessary means of exercising this right or in other words, freedom from restriction in
respect of employment in the editorial force.

This is the concept of the freedom of speech and expression as it obtains in the United
States of America and the necessary corollary thereof is that no measure can be
enacted which would have the effect of imposing a pre-censorship curtailing the
circulation or restricting the choice of employment or unemployment in the editorial
force. Such a measure would certainly tend to infringe the freedom of speech and
expression and would therefore be liable to be struck down as unconstitutional.

The court then proceeded to note:

The press is however, not immune from the ordinary forms of taxation for support of
the Government nor from the application of the general laws relating to industrial
relations. It was observed in Grosjean v. American Press Co. (Z3) (Supra).

"It is not intended by anything we have said to suggest that the owners of
newspapers are immune from any of the ordinary forms of taxation for support
of the Government. But this is not an ordinary form of tax but one single in
kind with a long history of hostile misuse against the freedom of the press.

95
 "The predominant purpose of the grant of immunity here invoked was to
preserve an untrammelled press as a vocal source of public information. The
newspapers, magazines and other journals of the country, it is safe to say, have
shed and continue to shed, more light on the public and business affairs of the
nation than any other instrumentality of publicity; and since informed public
opinion is the most patent of all restraints upon mis-government, the
suppression or abridgement of the publicity afforded by a free press cannot be
regarded otherwise than with grave concern. The tax here involved is bad not
because it takes money from the pockets of the appellees. If that were all a
wholly different question would be presented It is bad : Because, in the light
of its history and of its present setting, it is seen to be a deliberate and
calculated device in the guise of a tax to limit the circulation if information to
which the public is entitled in virtue of the constitutional guarantees. A free
press stands as one of the great interpreters between the Government and the
people. To allow it to be fettered is to fetter ourselves."

The court further noted:

While therefore no such immunity from the general laws can be claimed by the press
it would certainly not be legitimate to subject the press to laws which take away or
abridge the freedom of speech and expression or which would curtail circulation and
thereby narrow the scope of dissemination of information, or fetter its freedom to
choose its means of exercising the right or would undermine its independence by
driving it to seek Government aid. Laws which single out the press for laying upon its
excessive and prohibitive burdens which would restrict the circulation, impose a
penalty on its right to choose the instruments for its exercise or to seek an alternative
media, prevent newspapers from being started and ultimately drive the press to seek
Government aid in order to survive, would therefore be struck down as
unconstitutional.

Such laws would not be saved by Article 19 (2) of the Constitution.

Unless, therefore, a law enacted by the Legislature comes squarely within the
provisions of Art. 19(2) it would not be saved and would be struck down as
unconstitutional on the score of its violating the fundamental right of the petitioners
under Art. 19 (1) (a).

In the present case it is obvious that the only justification for the enactment of the
impugned Act is that it imposes reasonable restrictions in the interest of a section of
the general public viz., the working journalists and other persons employed in the
newspaper establishments. It does not fall within any of the categories specified in
Art. 19 (2) viz.,

"In the interest of the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence."

96
 Article 19(2) being thus out of the question the only point that falls to be determined
by us is whether the provisions of the impugned Act in any way take away or abridge
the petitioners' fundamental right of freedom of speech and expression.

Thus, the question to be explored was whether Article 19(1)(a) applied. The court
noted the contention of the government:

It was contended before us by the learned Attorney-General that it was only

legislation directly dealing with the right mentioned in Art. 19 (1) (a) that was
protected by it. If the legislation was not a direct legislation on the subject, Art. 19 (1)
(a) would have no application, the test being not the effect or result of legislation but
its subject-matter.

The newspapers on the other hand contended:

It was contended, on the other hand, on behalf of the petitioners that the Court has got
to look at the true nature and character of the legislation and judge its substance and
not its form, or in other words, its effect and operation. It was pointed out that the
impugned Act viewed as a whole was one to regulate the employment of the
necessary organs of newspaper publications and therefore related to the freedom of
the Press and as such came within the prohibition.

The court noted on this:

The following observations of Mahajan J. (as he then was) in Dwarkadas Shrinivas of

Bombay v. Sholapur Spinning and Weaving Co., Ltd., 1954 SCR 674 at p. 683 : (A I
R 1954 SC 119 at p. 123) (Z16), were also relied upon :

"In order to decide these issues it is necessary to examine with some strictness
the substance of the legislation for the purpose of determining what it is that
the legislature has really done; the Court, when such questions arise, is not
overpersuaded by the mere appearance of the legislation. In relation to
Constitutional prohibitions binding a legislature it is clear that the legislature
cannot disobey the prohibitions merely by employing indirect method of
achieving exactly the same result. Therefore, in all such cases the court has to
look behind the names, forms and appearances to discover the true character
and nature of the legislation."

The court noted on the nature of the legislation:

The impugned Act is as its long title shows an Act to regulate certain conditions of
service of working journalists and other persons employed in newspaper
establishments and in the very forefront of the Act, …

It is obvious that the enactment of this measure is for the amelioration of the
conditions of the workmen in the newspaper industry. … the main object being the
amelioration of the conditions of those workmen. It could not also be said that there
was any ulterior motive behind the enactment of such a measure because the
employers may have to share a greater financial burden than before or that the
working of the industry may be rendered more difficult than before. These are all

97
 incidental disadvantages which may manifest themselves in the future working of the
industry, but it could not be said that the Legislature in enacting that measure was
aiming at these disadvantages when it was trying to ameliorate the conditions of the
workmen. Those employers who are favourably situated, may not feel the strain at all
while those of them who are marginally situated may not be able to bear the strain and
may in conceivable cases have to disappear after closing down their establishments.
That, however, would be a consequence which would be extraneous and not within
the contemplation of the Legislature. It could therefore hardly be urged that the
possible effect of the impact of these measures in conceivable cases would vitiate the
legislation as such. All the consequences which have been visualized in this behalf by
the petitioners viz., the tendency to curtail circulation and thereby narrow the scope of
dissemination of information, fetters on the petitioners' freedom to choose the means
of exercising the right, likelihood of the independence of the press being undermined
by having to seek Government aid; the imposition of penalty on the petitioners' right
to choose the instruments for exercising the freedom or compelling them to seek
alternative media etc., would be remote and depend upon various factors which may
or may not come into play. Unless these were the direct or inevitable consequences of
the measures enacted in the impugned Act, it would not be possible to strike down the
legislation as having that effect and operation. A possible eventuality of this type
would not necessarily be the consequence which could be in the contemplation of the
legislature while enacting a measure of this type for the benefit of the workmen
concerned.

Even though the impugned Act enacts measures for the benefit of the working
journalists who are employed in newspaper establishments, the working journalists
are but the vocal organs and the necessary agencies for the exercise of the right of free
speech and expression, and any legislation directed towards the amelioration of their
conditions of service must necessarily affect the newspaper establishments and have
its repercussions on the freedom of Press. The impugned Act can therefore be
legitimately characterized as a measure which affects the press, and if the intention or
the proximate effect and operation of the Act was such to bring it within the mischief
of Art. 19 (1) (a) it would certainly be liable to be struck down. The real difficulty,
however, in the way of the petitioners is that whatever be the measures enacted for the
benefit of the Working Journalists neither the intention nor the effect and operation of
the impugned Act is to take away or abridge the right of freedom of speech and
expression enjoyed by the petitioners.

The court concluded:

Suffice it to say that so far as Art. 19 (1) (a) is concerned this contention also has a
remote bearing on the same and need not be discussed here at any particular length.

98
 Free Speech and the Social Media:
The Shreya Singhal Case

India enacted the Information Technology Act, 2000 in the early years of the rise of
the digital medium. The Act addressed commercial, administrative, criminal and
security issues related to the digital medium prevalent then. In the following decade,
there was a rapid and massive expansion of the digital medium. To address misuse
of the medium, the Parliament amended the act to constitute several digital media
related activities as crime. The Statement of Objects and Reasons of the amending
bill stated:

A rapid increase in the use of computer and internet has given rise to new forms of
crimes like publishing sexually explicit materials in electronic form, video voyeurism
and breach of confidentiality and leakage of data by intermediary, e-commerce frauds
like personation commonly known as Phishing, identity theft and offensive messages
through communication services. So, penal provisions are required to be included in
the Information Technology Act … to prevent such crimes.

Section 66A was inserted in the Act which made, among others, any communication
which was grossly offensive or menacing as a crime.

The entire Mumbai was shut down for the funeral of the Shiv Sena patriarch, Bal
Thackeray. Shaheen Dhada, a young 21-year-old girl, had reposted a Facebook
message questioning the shutdown of entire Mumbai. Her friend Renu ‘liked’ it. A
Sena leader got to know of the post from the social media and lodged a complaint
with the police, precipitating arrests of the girls. 49 The grounds of arrest included
sending messages through the computer or a computer device which were ‘grossly
offensive or of menacing character.’ 50 The arrests were only one among several
under the newly introduced provision Section 66 A of the Information Technology
Act.51 The arrests generated sharp response in the press, television and the social
media.52 Following the protests, the state government instructed an investigation as
to how legal action could be taken so quickly following the Facebook post. 53

The incidence precipitated a public interest litigation by a young lawyer, Shreya

Singhal, challenging the constitutional validity of Section 66A. Taking up the petition,
the Supreme Court immediately intervened and lamented: "The way the little children
were arrested, it outraged the sentiments of the people of the country. The way
these things had been taking place needs consideration.” 54 The central government
49
https://www.indiatoday.in/india/story/2-mumbai-girls-in-jail-for-tweet-against-bal-
thackeray-121882-2012-11-19
50
https://www.cnbc.com/id/49896031
51
https://www.cnbc.com/id/49896031
52
https://www.indiatoday.in/india/story/katju-mumbai-girls-facebook-comments-bal-
thackeray-121914-2012-11-19
53
https://economictimes.indiatimes.com/news/politics-and-nation/shaheen-dhadas-arrest-
triggered-by-pressure-from-shiv-sainiks/articleshow/17300332.cms
54
https://economictimes.indiatimes.com/news/politics-and-nation/facebook-row-sc-to-
examine-it-act-govt-issues-new-guidelines/articleshow/17417943.cms
99
attempted to justify the provision as ‘well-intentioned’ and only that it was ‘completely
abused’ by the state government.55 The Supreme Court placed the offending
provision, Section 66A, with reference to the freedom of speech and expression. The
court located the dispute in the chain of the preceding cases on the theme. We will
the chain and the resulting judgement of the court on the constitutional validity of
Section 66A.

Freedom of Speech and Expression

The Constitution of India gives protection to the freedom of speech and expression.
Article 19(1)(a) reads: ‘All citizens shall have the right to freedom of speech and
expression.’ The freedom, however, is not absolute and unlimited. The state has the
power to restrict it as provided in Article 19(2), which reads:

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.

On a plain reading, every citizen has the right to free ‘speech and expression’. The
state, however, can make laws restricting the freedom. The restriction can only be
for securing on one or more of the themes listed in Article 19(2). If the law is not for
achieving any of the listed ends, it must fail. If the law is to meet any of the themes
and qualifies, the additional requirement is the restriction it imposes on the
freedom must be ‘reasonable’ and not more. The question then was whether a
communication through the digital medium fell under ‘speech and expression’. If it
did, the next question would be whether the restrictions imposed by Section 66A
fell under any of the six grounds listed in Article 19(2). We will first explore the
meaning given to the term ‘freedom of speech and expression’ by the court over
the decades.

Scope of Speech and Expression

The first case before the Supreme Court on the freedom of speech and expression
was Romesh Thappar v. The State of Madras. 56 The Government of Madras,
apprehending the rise of communism, imposed a ban on the entry and circulation of
a weekly newspaper, Cross Roads, printed and published in Bombay, then. The
Supreme Court noted on the scope of the freedom of speech and expression:

… there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is ensured by the freedom of circulation.
Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value.

55
https://economictimes.indiatimes.com/news/politics-and-nation/Supreme-Court-notice-to-
centre-Maharashtra-on-Facebook-incident-and-misuse-of-Section-66A-of-IT-
Act/articleshow/17434294.cms
56
Romesh Thappar v. The State of Madras, AIR 1950 SC 124.
100
Sakal Papers (P) Ltd. v. Union of India was the next landmark case on the subject.
The newspapers put almost half the space to advertising. The established
newspapers could sell below the cost of production and squeeze out small
newspapers and new entrants. To create a level field, the government introduced a
law fixing the proportion of space that could be used for advertising. Additionally, the
law settled the prices of newspapers on the basis of the number pages. The law was
challenged for the violation of freedom of speech and expression. The Supreme
Court noted:

Our Constitution does not expressly provide for the freedom of press but it has been
held by this Court that this freedom is included in "freedom of speech and expression"
guaranteed by cl. (1) (a) of Art. 19. … The right to propagate one's ideas is inherent in
the conception of freedom of speech and expression. For the purpose of propagating
his idea every citizen has a right to publish them, to disseminate them and to circulate
them. He is entitled to do so either by word of mouth or by writing.

The court further emphasised that the right to free and unrestrained circulation was a
part of the freedom. It noted:

The right guaranteed thus extends … not merely to the matter which he is entitled to
circulate, but also to the volume of circulation. In other words, the citizen is entitled to
propagate his views and reach any class and number of readers as he chooses.

The newspapers in India were heavily dependent on imported newsprint. 57 The

government of India, under the Import Control Order, 1955 sought to regulate
import, allocation and utilisation of newsprint. In the Bennett Coleman Case,
several newspapers challenged that the order limiting availability of the newsprint
violated the freedom of speech and expression. The court, referring to a wide body
of literature, emphasised the pivotal place of a free press in the modern world and
democracies. Justice Mathew noted:58

The constitutional guarantee of the freedom of speech is not so much for the benefit
of the press as it is for the benefit of the public. The freedom of speech includes
within its compass the right of all citizens to read and be informed.

The Supreme Court, in the current case, thus summarised the older cases:

Various judgments of this Court have referred to the importance of freedom of speech
and expression both from the point of view of the liberty of the individual and from
the point of view of our democratic form of Government. For example, in the early
case of Romesh Thappar v. State of Madras59, this Court stated that freedom of speech
lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. and
Ors. v. Union of India60, a Constitution Bench of this Court said freedom of speech
and expression of opinion is of paramount importance under a democratic constitution

57
Bennett Coleman and Co. Ltd. v. Union of India, AIR 1973 SC 106.
58
Bennett Coleman v. Union of India, (1972) 2 SCC 788
59
Romesh Thappar v. State of Madras [1950] SCR 594 at 602 : (AIR 1950 SC 124)
60
Sakal Papers (P) Ltd. and Ors. v. Union of India [1962] 3 SCR 842 at 866 : (AIR 1962 SC
305),
101
 which envisages changes in the composition of legislatures and Governments and
must be preserved.

Market Place of Ideas

The court then turned to S. Khushboo v. Kanniamal. 61 The fortnightly magazine

‘India Today’ had published a survey on living and lifestyle in big cities in India. The
survey brought out increase in live-in relationships. The magazine had also gathered
and published views of several individuals. Khushboo, a well-known film actress,
was one of them. She called for social acceptance of live-in relationships. The Tamil
Nadu government filed several criminal cases against her the grounds that her
comments accepting premarital live-in relationships constituted obscenity and
violated laws against women. The action of the government was challenged before
the Supreme Court on the grounds of violation of the freedom of speech and
expression. The court noted:

Even though the constitutional freedom of speech and expression is not absolute and
can be subjected to reasonable restrictions on grounds such as 'decency and morality'
among others, we must lay stress on the need to tolerate unpopular views in the socio-
cultural space. The framers of our Constitution recognised the importance of
safeguarding this right since the free flow of opinions and ideas is essential to sustain
the collective life of the citizenry. While an informed citizenry is a pre-condition for
meaningful governance in the political sense, we must also promote a culture of open
dialogue when it comes to societal attitudes.

Approving it, the Supreme Court in the current case recognised that the American
courts had developed it as the concept of ‘market place of ideas’. The court quoted
the following passage as the ‘the felicitous words of Justice Holmes in his famous
dissent’ in Abrams v. United States62:

But when men have realized that time has upset many fighting faiths, they may come
to believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas - that the best test of
truth is the power of thought to get itself accepted in the competition of the market,
and that truth is the only ground upon which their wishes safely can be carried out.
That at any rate is the theory of our Constitution.

The court quoted the following passages of Justice Brandeis in his famous judgment
in Whitney v. California:63

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burnt women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced. There
must be reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious one.
61
S. Khushboo v. Kanniamal and Anr. (2010) 5 SCC 600 : (AIR 2010 SC 3196)
62
Abrams v. United States, 250 US 616 (1919)
63
Whitney v. California, (1926) 71 L Ed 1095
102
 Every denunciation of existing law tends in some measure to increase the probability
that there will be violation of it. Condonation of a breach enhances the probability.
Expressions of approval add to the probability. Propagation of the criminal state of
mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still
further. But even advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately acted on. The
wide difference between advocacy and incitement, between preparation and attempt,
between assembling and conspiracy, must be borne in mind. In order to support a
finding of clear and present danger it must be shown either that immediate serious
violence was to be expected or was advocated, or that the past conduct furnished
reason to believe that such advocacy was then contemplated.

Drawing from the judgements, the court formulated on the content and scope of
‘freedom of speech and expression’. It noted:

There are three concepts which are fundamental in understanding the reach of this
most basic of human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such discussion or
advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage
that a law may be made curtailing the speech or expression.

The court moved to apply the principles to appraise Section 66 A of the Information
Technology Act, 2000.

The Information Technology Act

Section 2 of the Information Technology Act defines ‘information’ to include ‘data,

message, text, images, sound, voice, codes, computer programmes, software and
databases or micro film or computer generated micro fiche.’ Section 66A reads:

66-A. Punishment for sending offensive messages through communication service,

etc. -Any person who sends, by means of a computer resource or a communication
device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages, shall be punishable with
imprisonment for a term which may extend to three years and with fine.

Explanation- For the purposes of this section, terms "electronic mail" and "electronic
mail message" means a message or information created or transmitted or received on

103
 a computer, computer system, computer resource or communication device including
attachments in text, image, audio, video and any other electronic record, which may
be transmitted with the message.

The scope of freedom of speech and expression is broad. There was no doubt that
communication through the digital medium was covered under Article 19(1)(a).
However, a law restricting it can be valid if it imposes ‘reasonable restrictions’ for any
of the eight listed grounds in Article 19(2). The petitioner contended that Section 66
A did not fall under any one of the eight categories. The government contended that
the section can be supported under the heads of public order, defamation, incitement
to an offence and decency or morality. The court moved to examine Article 19(1)(2).
Potentially, the most promising category was ‘public order’.

Public Order

The Supreme Court through a chain of judgements has elaborated the scope and
meaning of the term ‘public order’. The court summarised the formulation developed
in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia: 64

… public order is synonymous with public safety and tranquillity; it is the absence of
disorder involving breaches of local significance in contradistinction to national
upheavals, such as revolution, civil strife, war, affecting the security of the State.

The formulation was refined in Dr. Ram Manohar Lohia v. State of Bihar. 65 The court
quoted the following passage from the judgement:

… just as "public order" … was said to comprehend disorders of less gravity than
those affecting "security of State", "law and order" also comprehends disorders of less
gravity than those affecting "public order". One has to imagine three concentric
circles. Law and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents security of State. It is then
easy to see that an act may affect law and order but not public order just as an act may
affect public order but not security of the State.

The court next reviewed Arun Ghosh v. State of West Bengal. 66 In this case, the
Supreme Court summarised the principle developed in the Lohia case and
elaborating it, noted:

In Dr. Ram Manohar Lohia's case this Court pointed out the difference between
maintenance of law and order and its disturbance and the maintenance of public order
and its disturbance. Public order was said to embrace more of the community than law
and order. Public order is the even tempo of the life of the community taking the
country as a whole or even a specified locality. Disturbance of public order is to be
distinguished, from acts directed against individuals which do not disturb the society
to the extent of causing a general disturbance of public tranquillity. It is the degree of
disturbance and its effect upon the life of the community in a locality which
determines whether the disturbance amounts only to a breach of law and order.
64
Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633.
65
Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
66
Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228.
104
The court illustrated it:

Take for instance, a man stabs another. People may be shocked and even disturbed,
but the life of the community keeps moving at an even tempo, however much one
may dislike the act. Take another case of a town where there is communal tension. A
man stabs a member of the other community. This is an act of a very different sort. Its
implications are deeper and it affects the even tempo of life and public order is
jeopardized because the repercussions of the act embrace large sections of the
community and incite them to make further breaches of the law and order and to
subvert the public order. An act by itself is not determinant of its own gravity. In its
quality it may not differ from another but in its potentiality it may be very different.

The court restated the formulation:

… whether a man has only committed a breach of law and order or has acted in a
manner likely to cause a disturbance of the public order is a question of degree and
the extent of the reach of the act upon the society. … similar acts in different contexts
affect differently law and order on the one hand and public order on the other. It is
always a question of degree of the harm and its effect upon the community. The
question to ask is: Does it lead to disturbance of the current life of the community so
as to amount to a disturbance of the public order or does it affect merely an individual
leaving the tranquillity of the society undisturbed? This question has to be faced in
every case on facts. There is no formula by which one case can be distinguished from
another.

Public Order and Section 66A

The Supreme Court appraised Section 66A with the meaning and scope of the term
‘public order’. It noted:

We have to ask ourselves the question: does a particular act lead to disturbance of the
current life of the community or does it merely affect an individual leaving the
tranquillity of society undisturbed? Going by this test, it is clear that Section 66A is
intended to punish any person who uses the internet to disseminate any information
that falls within the sub-clauses of Section 66A. It will be immediately noticed that
the recipient of the written word that is sent by the person who is accused of the
offence is not of any importance so far as this Section is concerned. (Save and except
where under sub-clause (c) the addressee or recipient is deceived or misled about the
origin of a particular message.) It is clear, therefore, that the information that is
disseminated may be to one individual or several individuals. The Section makes no
distinction between mass dissemination and dissemination to one person. Further, the
Section does not require that such message should have a clear tendency to disrupt
public order. Such message need not have any potential which could disturb the
community at large.

The court continued noticing that there was no nexus between the message and its
potential to disrupt public order. It noted:

105
 … there is no ingredient in this offence of inciting anybody to do anything which a
reasonable man would then say would have the tendency of being an immediate threat
to public safety or tranquillity. On all these counts, it is clear that the Section has no
proximate relationship to public order whatsoever. … this Court has held that mere
'annoyance' need not cause disturbance of public order. Under Section 66A, the
offence is complete by sending a message for the purpose of causing annoyance,
either 'persistently' or otherwise without in any manner impacting public order.

The activities listed in Section 66A, like insult, injury, criminal intimidation or hatred
need not disrupt public order but at the same, in some instances, these could disrupt
it or have a tendency to disrupt it. How does one balance the freedom of speech and
expression with the possibility of the disruption? The court attended to the point by
quoting the following passage from S. Rangarajan v. P. Jagjivan: 67

There does indeed have to be a compromise between the interest of freedom of

expression and special interests. But we cannot simply balance the two interests as if
they are of equal weight. Our commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The anticipated danger should not
be remote, conjectural or far-fetched. It should have proximate and direct nexus with
the expression. The expression of thought should be intrinsically dangerous to the
public interest. In other words, the expression should be inseparably locked up with
the action contemplated like the equivalent of a "spark in a powder keg".

The court applying the principle concluded:

Viewed at either by the standpoint of the clear and present danger test or the tendency
to create public disorder, Section 66A would not pass muster as it has no element of
any tendency to create public disorder which ought to be an essential ingredient of the
offence which it creates.

Having concluded that Section 66A was not supported by ‘public order’ under Article
19(2), the court moved to examine the claims of the state under the other subjects,
defamation, incitement to an offence and decency or morality. The court explored the
claim.

Defamation

The state claimed that Section 66A was supported on the grounds that it was a
restriction to protection against defamation and thus, supported by Article 19(2).
Defamation is defined in Section 499 of the Penal Code. Referring to the definition,
the court noted on the claim:

It will be noticed that for something to be defamatory, injury to reputation is a basic

ingredient. Section 66A does not concern itself with injury to reputation. Something
may be grossly offensive and may annoy or be inconvenient to somebody without at
all affecting his reputation. It is clear therefore that the Section is not aimed at
defamatory statements at all.
67
S. Rangarajan v. P. Jagjivan and Ors. (1989) 2 SCC 574 at paragraph 45:

106
The court concluded that Section 66A was not supported by Article 19(2) under the
subject of defamation. The court moved to the next claim of the state.

Incitement to an offence

The state claimed that Section 66A was protection against incitement to offence, a
subject in Article 19(2). The court noted on the claim:

Section 66A has no proximate connection with incitement to commit an offence.

Firstly, the information disseminated over the internet need not be information which
"incites" anybody at all. Written words may be sent that may be purely in the realm of
"discussion" or "advocacy" of a "particular point of view". Further, the mere causing
of annoyance, inconvenience, danger etc., or being grossly offensive or having a
menacing character are not offences under the Penal Code at all. They may be
ingredients of certain offences under the Penal Code but are not offences in
themselves. For these reasons, Section 66A has nothing to do with "incitement to an
offence".

Thus, Section 66A was not protected under ‘incitement to an offence’.

Decency or Morality

The state next argued to save Section 66A under the head of decency or morality
under Article 19(2). The Supreme Court noted the test for morality, developed by it,
drawing from the UK, US and Canadian courts:

… a material may be regarded as obscene if the average person applying

contemporary community standards would find that the subject matter taken as a
whole appeals to the prurient interest and that taken as a whole it otherwise lacks
serious literary artistic, political, educational or scientific value.

The test is called ‘contemporary community standards test’. A communication must

fall foul of the contemporary views for it to be indecent or immoral. The court applied
the test to Section 66A:

What has been said with regard to public order and incitement to an offence equally
applies here. Section 66A cannot possibly be said to create an offence which falls
within the expression 'decency' or 'morality' in that what may be grossly offensive or
annoying under the Section need not be obscene at all - in fact the word 'obscene' is
conspicuous by its absence in Section 66A.

The court concluded:

As Section 66A severely curtails information that may be sent on the internet based
on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to
any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article
19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.

107
Vagueness

It was contended to the court that the language used in Section 66A was completely
vague. A user got no guide from it as to when he would end committing an offence.
The authorities administering the section were left clueless in drawing a line where a
particular communication fell. The court stated the established principle that a law
which was vague, uncertain or unintelligible was bad and void. The court agreed that
the expressions used in 66A were completely open-ended and undefined. Section 66
was in stark contrast to Section 66A. Section 66 reads:

"66. Computer related offences.- If any person, dishonestly or fraudulently, does any
act referred to in Section 43, he shall be punishable with imprisonment for a term
which may extend to three years or with fine which may extend to five lakh rupees or
with both.

Explanation.- For the purposes of this section,-

(a) the word "dishonestly" shall have the meaning assigned to it in Section 24 of the
Indian Penal Code (45 of 1860);

(b) the word "fraudulently" shall have the meaning assigned to it in Section 25 of the
Indian Penal Code (45 of 1860)."

The court commented on the contrast:

It will be clear that in all computer related offences that are spoken of by Section 66,
mens rea is an ingredient and the expression "dishonestly" and "fraudulently" are
defined with some degree of specificity, unlike the expressions used in Section 66A.

The court noted on the terms used in Section 66A:

… every expression used is nebulous in meaning. What may be offensive to one may
not be offensive to another. What may cause annoyance or inconvenience to one may
not cause annoyance or inconvenience to another. Even the expression "persistently"
is completely imprecise - suppose a message is sent thrice, can it be said that it was
sent "persistently"? Does a message have to be sent (say) at least eight times, before it
can be said that such message is "persistently" sent? There is no demarcating line
conveyed by any of these expressions - and that is what renders the Section
unconstitutionally vague.

The court continued:

Information that may be grossly offensive or which causes annoyance or

inconvenience are undefined terms which take into the net a very large amount of
protected and innocent speech. A person may discuss or even advocate by means of
writing disseminated over the internet information that may be a view or point of view
pertaining to governmental, literary, scientific or other matters which may be
unpalatable to certain sections of society. It is obvious that an expression of a view on
any matter may cause annoyance, inconvenience or may be grossly offensive to some.

108
The court illustrated it:

A few examples will suffice. A certain section of a particular community may be

grossly offended or annoyed by communications over the internet by "liberal views" -
such as the emancipation of women or the abolition of the caste system or whether
certain members of a non-proselytizing religion should be allowed to bring persons
within their fold who are otherwise outside the fold. Each one of these things may be
grossly offensive, annoying, inconvenient, insulting or injurious to large sections of
particular communities and would fall within the net cast by Section 66A. In point of
fact, Section 66A is cast so widely that virtually any opinion on any subject would be
covered by it, as any serious opinion dissenting with the mores of the day would be
caught within its net. Such is the reach of the Section and if it is to withstand the test
of constitutionality, the chilling effect on free speech would be total.

The court noted that the Supreme Court of India has recognised the ‘chilling effect’ of
free speech formulated by the US courts and adopted by the UK courts. It refers to
the phenomenon that undesirable fetters on free speech would prevent free speech.
The court asserted that the law should not be used in a manner that has chilling
effects on the freedom of speech and expression. It noted:

It is thus clear that not only are the expressions used in Section 66A expressions of in
exactitude but they are also over broad and would fall foul of the repeated injunctions
of this Court that restrictions on the freedom of speech must be couched in the
narrowest possible terms. … [the section] takes within its sweep protected speech and
speech that is innocent in nature and is liable therefore to be used in such a way as to
have a chilling effect on free speech and would, therefore, have to be struck down on
the ground of overreadth.

The court in conclusion noted:

Quite obviously, a prospective offender of Section 66A and the authorities who are to
enforce Section 66A have absolutely no manageable standard by which to book a
person for an offence under Section 66A. … it is clear that Section 66A is
unconstitutionally vague. … it is clear that Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets the balance between
such right and the reasonable restrictions that may be imposed on such right.

Severability

Another argument presented by the state was that the entire 66A should not fall. The
valid part of 66A should be identified and saved. This is called severability, to
separate out the good from the bad. The court first noted that the submission was
vague as it was not indicated as to which part of 66A was to be saved. The court
further quoted on severability from Romesh Thappar v. The State of Madras: 68

68
Romesh Thappar v. The State of Madras, [1950] SCR 594 : (AIR 1950 SC 124)

109
 Where a law purports to authorise the imposition of restrictions on a fundamental
right in language wide enough to cover restrictions both within and without the limits
of constitutionally permissible legislative action affecting such right, it is not possible
to uphold it even so far as it may be applied within the constitutional limits, as it is not
severable. So long as the possibility of its being applied for purposes not sanctioned
by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional
and void.

The court applied to the present case:

It has been held by us that Section 66A purports to authorize the imposition of
restrictions on the fundamental right contained in Article 19(1)(a) in language wide
enough to cover restrictions both within and without the limits of constitutionally
permissible legislative action. … the possibility of Section 66A being applied for
purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be
held to be wholly unconstitutional and void.

Conclusion

This was the first challenge to the freedom of speech and expression in relation to
the internet and the digital media. The judgement established that all communication
through the digital medium and internet was covered by the ‘freedom of speech and
expression’. The state had introduced changes in the law in response to the rapid
rise of the digital medium where it came to engulf all social, economic and political
communication. The changes created several new offences in relation to the
electronic medium. This included communication which was grossly offensive,
menacing or intended to cause annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will. The court found that the
grounds were not supported by the subjects listed in Article 19(2) and declared
Section 66A unconstitutional.

110
 TATA Press Limited v. Mahanagar Telephone Nigam Limited

For long, telephone services in India was a monopoly of the government of India. 69
Mahanagar Telephone Nigam Limited (the Nigam) was the public sector organisation
providing telephone services in Mumbai and Delhi. The Nigam published and
distributed a telephone directory consisting of the names of the subscribers,
arranged in alphabetical order and the phone numbers. The Nigam, to cover the cost
of printing the directory, then, licenced contractors to publish the directory. The
contractors could raise revenue for themselves by procuring advertisements.
Following this, list of subscribers was printed on whitepaper. The advertisements
were published on yellow pages, appended to the telephone directory. Thus, the
directory consisted of the white pages containing alphabetical list of telephone
subscribers and yellow pages consisting of advertisements.

TATA Press Limited started publishing buyers guide which was a compilation of
advertisements given by businessmen, traders and professionals. The guide was
organised according to trade, business or profession. The guide also had entries or
advertisements which were not paid for. The only criterion for inclusion of
advertisements in the guide was that the advertiser must be engaged in a trade,
profession or business. The guide was named Tata Yellow Pages. The Nigam
sought to stop the publication on the grounds that within the law, no one could
publish list of subscribers without the Nigam’s permission. The Nigam found support
in Rule 458 of the Indian Telegraph Rules, 1951, which provided:

Rule 458. Publishing of telephone directory. - Except with the permission of the
Telegraph Authority no person shall publish any list of telephone subscribes.

Tata Press Limited contended that advertisement was ‘commercial speech’ and
protected within "freedom of speech and expression" guaranteed under Article 19(1)
(a) of the Constitution of India. The Nigam contended that advertisement was meant
for furtherance of trade or commerce and was outside the concept of freedom of
speech and expression. The Nigam relied on the judgement of the Supreme Court in
Hamdard Dawakhana (WAKF) Lal Kaun, Delhi v. Union of India 70, where the court
had visited the question of advertisements being covered under the freedom of
speech and expression. The Supreme Court in the Hamdard Case had drawn from
the American judgements, significantly, Valentine v. Chrestensen. In the subsequent
years, the US Supreme Court changed its position. This happened in the case
Virginia Board Case. We will first review Valentine v. Chrestensen and follow its
adoption in the Hamdard case. We will then review the Virginia Board case and see
its adoption in the current case.

Valentine v. Chrestensen

A city had an ordinance prohibiting distribution of commercial and business

advertisement pamphlets on the city streets. 71 A person was distributing pamphlets
which on one side had a protest action against decision taken by public officials and
69
TATA Press Limited v. Mahanagar Telephone Nigam Limited, AIR 1995 SC 2438
70
Hamdard Dawakhana (WAKF) Lal Kaun, Delhi v. Union of India, AIR 1960 SC 554
71
Lewis J. Valentine v: F.J. Chrestensen (1941 (86) Law Ed. 1262)
111
on the other side, commercial advertisement. The question before the court was on
the right of freedom of communication of the person in distributing the pamphlet. The
US Supreme Court noted:

This Court has unequivocally held that the streets are proper places for the exercise of
the freedom of communicating information and disseminating opinion and that,
though the states and municipalities may appropriately regulate the privilege in the
public interest, they may not unduly burden or prescribe its employment in these
public thoroughfares. We are equally clear that the Constitution imposes no such
restraint on government as respects purely commercial advertising....... If the
respondents was attempting to use the streets of New York by distributing commercial
advertising, the prohibition of the Code provisions was lawfully invoked against such
conduct.

The Hamdard Case

The Parliament enacted the Drugs and Magic Remedies (Objectionable

Advertisement) Act, 1954. The preamble to the act provided:

An Act to control the advertisement of drugs in certain cases, to prohibit the

advertisement for certain purposes of remedies alleged to possess magic qualities …

The object of the act was the prevention of self-medication and self-treatment. It
prohibited advertisement of several classes of medicines. The Hamdard Dawakhana
(wakf) was aggrieved as it could not freely advertise its products. The question
before the court was whether advertising was covered under the right of the freedom
of speech and expression. The Supreme Court observed:

An advertisement is no doubt a form of speech but its true character is reflected by the
object for the promotion of which it is employed. It assumes the attributes and
elements of the activity under Art. 19 (1) which it seeks to aid by bringing it to the
notice of the public. When it takes the form of a commercial advertisement which has
an element of trade of commerce it no longer falls within the concept of freedom of
speech for the object is not propagation of ideas social, political or economic or
furtherance of literature or human thought; but as in the present case the
commendation of the efficacy, value and importance in treatment of particular
diseases by certain drugs and medicines. In such case, advertisement is a part of
business … and had no relationship with what may be called the essential concept of
the freedom of speech. It cannot be said that the right to publish and distribute
commercial advertisements advertising an individual's personal business is a part of
freedom of speech guaranteed by the Constitution.

The court relying on Valentine v. Chrestensen noted:

It cannot the said therefore that every advertisement is a matter dealing with freedom
of speech nor can it be said that it is an expression of ideas. In every case one has to
see what is the nature of the advertisement and what activity falling under Art. 19(1) it
seeks to further. The advertisements in the instant case relate to commerce or trade
and not to propagating of ideas; and advertising of prohibited drugs or commodities of
which the sale is not in the interest of the general public cannot be speech within the

112
 meaning of freedom of speech and would not fall within Art. 19(1) (a). The main
purpose and true intent and aim object and scope of the Act is to prevent self-
medication or self-treatment and for that purpose advertisements commending certain
drugs and medicines have been prohibited. Can it be said that this is an abridgement
of the petitioners' right of free speech. In our opinion it is not. Just as in
Chamarbaughwala's case, 1958 SCR 930 : (AIR 1957 SC 628), it was said that
activities undertaken and carried on with a view to earning profits e.g. the business of
betting and gambling will not the protected as falling within the guaranteed right of
carrying on business or trade so it cannot be said that an advertisement commending
drugs and substances as appropriate cure for certain diseases is an exercise of the right
of freedom of speech. Freedom of speech goes to the heart of the natural right of an
organised freedom-loving society to "impart and acquire information about that
common interest". If any limitation is placed which results in the society being
deprived of such right then no doubt it would fall within the guaranteed freedom
under Art. 19(1)(a). But if all it does is that it deprives a trader from commending his
wares it would not fall within that term.

… As we have said above advertisement takes the same attributes as the object it
seeks to promote or bring to the notice of the public to be used by it. Examples can be
multiplied which would show that advertisement dealing with trade and business has
relation with the item "business or trade" and not with "freedom of speech". Thus
advertisements sought to be banned do not fall under Art. 19(1)(a).

The Virginia Board Case

State of Virginia had a law which provided that a pharmacist licensed in the state
would be guilty of unprofessional conduct if he: 72

… publishes, advertises or promotes, directly or indirectly, in any manner whatsoever,

any amount, price, fee, premium, discount, rebate or credit terms... for any drugs
which may be dispensed only by prescription.

The District Court declared the law to be violative of the freedom of communication.
It was contended before the Supreme Court that the advertisement was ‘commercial
speech’ and protected under the First Amendment of the US Constitution. The US
Supreme Court recognised that the past decisions (including Valentine v.
Chrestensen), had not given protection to commercial speech. The court noted,
however, that subsequently, it ‘has never denied protection on the ground that the
speech in issue was "commercial speech". According to the court, the earlier position
was a ‘simplistic approach’ and has been abandoned. The court noted that in all the
cases commercial speech was in conjunction with other forms of speech. This case
was the first one which was exclusively on commercial speech. The court noted:

Here, in contrast, the question whether there is a First Amendment exception for
"commercial speech" is squarely before us. Our pharmacist does not wish to
editorialize on any subject, cultural, philosophical, or political. He does not wish to
report any particularly newsworthy fact, or to make generalize observations even

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (1976) 425
72

US 748.
113
 about commercial matters. The "idea" he wishes to communicate is simply this: "I
will sell you the X prescription drug at the Y price". Our question, then, is whether
this communication is wholly outside the protection of the First Amendment.

The court set the question, casting it in terms of the prior judgements:

Our question is whether speech which does "no more than propose a commercial
transaction." … is so removed from any "expression of ideas", … "truth, science,
morality, and arts in general, in its diffusion of liberal sentiments on the
administration of Government," … that it lacks all protection. Our answer is that it is
not.

The court gave reasons for its answer. It noted:

Generalizing, society also may have a strong interest in the free flow of commercial
information. Even an individual advertisement, though entirely "commercial, "may be
of general public interest. The facts of decided cases furnish illustrations;
advertisements stating that referral services for legal abortions are available … that a
manufacturer of artificial furs promotes his product as an alternative to the extinction
by his competitors of fur-bearing mammals … and that a domestic producer
advertises his product as an alternative to imports that tend to deprive American
residents of their jobs.

The court explored the subject further:

Moreover, there is another consideration that suggest that no line between publicly
"interesting" or "important" commercial advertising and the opposite kind could ever
be drawn. Advertising, however tasteless and excessive it sometimes may seem, is
nonetheless dissemination of information as to who is producing and selling what
product, for what reason, and at what price. So long as we preserve a predominantly
free enterprise economy, the allocation of our resources in large measure will be made
through numerous private economic decisions. It is a matter of public interest that
those decisions, in the aggregate, be intelligent and well informed. To this end, the
free flow of commercial information is indispensable… And if it is indispensable to
the proper allocation of resources in a free enterprise system, it is also indispensable
to the formation of intelligent opinions as to how that system ought to be regulated or
altered. Therefore, even if the First Amendment were thought to be primarily an
instrument to enlighten public decision making in a democracy we could not say that
the free flow of information does not serve that goal.

The court, thus, saw commercial speech as another form of speech.

The Tata Yellow Pages

Coming to the current case, the Supreme Court of India summarised the
developments by the US Courts:

It is, thus, obvious that the United States Supreme Court in Virginia Board case has
virtually overruled Valentine's case, decided in 1942. The Court has ruled in clear
terms that the Virginia statute which had the effect of prohibiting pharmacies from

114
 advertising the price of prescription drugs violated the First Amendment protection.
… After the decision in Virginia Board case it is almost settled law in the United
Sates that "commercial speech" is entitled to the First Amendment protection. The
Supreme Court has, however, made it clear that Government was completely free to
recall "commercial speech" which is false, misleading, unfair, deceptive and which
proposes illegal transactions. A Political or social speech and other public - affairs -
oriented discussions are entitled to full First Amendment protection whereas a
"commercial speech" may be restricted more easily whenever the government can
show substantial justification for doing so.

The court turned to freedom of speech in the Indian Constitution. It noted:

Unlike the First Amendment under the United States Constitution, our Constitution
itself lays down in Article 19(2) the restrictions which can be imposed on the
fundamental right guaranteed under Article 19(1)(a) of the Constitution. The
"commercial speech" which is deceptive, unfair misleading and untruthful would be
hit by Article 19 (2) of the Constitution and can be regulated/prohibited by the State.

This Court in Hamdard Dawakhana's case was dealing with advertising of prohibited
drugs and commodities. The Court came to the conclusion that the sale of prohibited
drugs was not in the interest of the general public and as such "could not be speech"
within the meaning of freedom of speech and expression under Article 19(1)(a) of the
Constitution. The Court further held in the said case that an advertisement is no doubt
a form of speech but its true character is reflected by the object for the promotion of
which it is employed.

The court noted that the case was based on the Valentine Case which has been
overruled by the Virginia Board Case. In this context, the Supreme Court noted:

… "commercial speech" cannot be denied the protection of Article 19 (1) (a) of the
Constitution merely because the same are issued by businessmen.

Advertising is considered to be the cornerstone of our economic system. Low prices

of consumers are dependent upon mass production, mass production is dependent
upon volume sales, and volume sales are dependent upon advertising. Apart from the
lifeline of the free economy in a democratic country, advertising can be viewed as the
life blood of free media, paying of the costs and thus making the media widely
available. The newspaper industry obtains 60/80% of its revenue from advertising.
Advertising pays large portion of the costs of supplying the public with newspaper.
For a democratic press the advertising "subsidy" is crucial. Without advertising, the
resources available for expenditure on the "news" would decline, which may lead to
an erosion of quality and quantity. The cost of the "news" to the public would
increase, thereby restricting its "democratic" availability.

The Court drew from an earlier judgement, Sakal Papers (P.) Ltd. v. Union of India.
The government had made a law to regulate the prices of newspaper allocation of
space to advertisement. The court summarised the contention and the judgement:

This Court held that the Act placed restraints on the freedom of press to circulate.
This Court further held that the curtailment of the advertisements would bring down

115
 the circulation of the newspaper and as such would be hit by Article 19 (1) (a) of the
Constitution of India. In Sakal Papers's case (AIR 1962 SC 305), it was argued before
this Court that the publication of advertisements was a trading activity. The
diminution of advertisement revenue could not be regarded as an infringement of the
right under Article 19(1)(a). It was further argued before this Court that devoting large
volume of space to advertisements could not be the lawful exercise of the right of
freedom to speech and expression or the right of dissemination of news and views. It
was also contended that instead of raising the price of the newspaper the object could
be achieved by reducing the advertisements. This Court rejected the contentions and
held as under (paras 33 and 34 of AIR) :-

"Again S.3(1) of the Act in so far as it permits the allocation of space to

advertisements also directly affects freedom of circulation. If the area for
advertisements is curtailed the price of the newspaper will be forced up. If that
happens, the circulation will inevitably go down. This would be no remote, but
a direct consequence of curtailment of advertisements..... If, on the other hand,
the space for advertisement is reduced the earnings of a newspaper would go
down and it would either have to run at a loss or close down or raise its price.
The object of the Act in regulating the space for advertisements is stated to be
to prevent 'unfair' competition. It is thus directed against circulation of a
newspaper. When a law is intended to bring about this result there would be a
direct interference with the right of freedom of speech and expression
guaranteed under Article 19(1)(a)."

The court quoted the following from its judgement in Bennett Coleman and Co. v.
Union of India:73

"The law which lays excessive and prohibitive burden which would restrict the
circulation of a newspaper will not be saved by Article 19(2). If the area of
advertisements is restricted, price of paper goes up. If the price goes up circulation
will go down. This was held in Sakal Papers case to be the direct consequence of
curtailment of advertisement. The freedom of a newspaper to publish any number of
pages or to circulate it to any number of persons has been held by this Court to be an
integral part of the freedom of speech and expression. This freedom is violated by
placing restraints upon it or by placing restraints upon something which is an essential
part of that freedom. A restraint on the number of pages, a restraint on circulation and
a restraint on advertisements would affect the fundamental rights under Article 19 (1)
(a) on the aspects of propagation, publication and circulation."

The court consolidated the position. It noted:

Advertising as a "commercial speech" has two facets. Advertising which is no more

than a commercial transaction, is nonetheless dissemination of information regarding
the product-advertised. Public at large is benefited by the information made available
through the advertisement. In a democratic economy free flow of commercial
information is indispensable. There cannot be honest and economical marketing by
the public at large without being educated by the information disseminated through
advertisements. The economic system in a democracy would be handicapped without

73
Bennett Coleman and Co. v. Union of India AIR 1973 SC 106
116
 there being freedom of "commercial speech". In relation to the publication and
circulation of newspapers, this Court … has authoritatively held that any restraint or
curtailment of advertisement would affect the fundamental right under Article 19 (1)
(a) on the aspects of propagation, publication and circulation.

Examined from another angle, the public at large has a right to receive the
"commercial speech". Article (19)(1)(a) not only guarantees freedom of speech and
expression, it also protects the rights of an individual to listen, read and receive the
said speech. So far as the economic needs of a citizen are concerned, their fulfilment
has to be guided by the information disseminated through the advertisements. The
protection of Article 19(1)(a) is available to the speaker as well as to the recipient of
the speech. The recipient of "commercial speech' may be having much deeper interest
in the advertisement than the businessman who is behind the publication. An
advertisement giving information regarding a life saving drug may be of much more
importance to general public than to the advertiser who may be having purely a trade
consideration.

The court concluded:

We, therefore, hold that "commercial speech" is a part of the freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution.

Application to Tata Yellow Pages

The court then moved to apply the principle to the current case. Towards this, we
first need to note the relevant provisions of the Indian Telegraph Rules, 1951. Rules
452, 453, 457 458 and 459 are as follows:

452. Supply of telephone directories. - A copy of the telephone directory shall be

supplied free of charges for each telephone, extension of party line, rented by the
subscriber from an exchange system or private branch exchange or a private
exchange. A copy shall also be supplied free of charge for each extension (including
extension) from an extension working from a public call office. Additional copies
supplied shall be charged for at such rate as may be fixed by the Telegraph Authority
from time to time.

453. Entries in telephone directories. - For each direct telephone line rented (i.e. for
main connections, direct extensions and PBX junction lines) ordinarily only one entry
not exceeding one line will be allowed free of charge in the telephone directory to
every subscriber. Such entry shall contain the telephone number, the initials, the
surname and the address of the subscriber or user. No word which can intelligibly be
abbreviated shall be allowed to the printed in full. Additional lines may be allowed by
the Telegraph Authority at its discretion.

457. General. - Any telephone directory provided by the Department shall remain its
exclusive property and shall be delivered to it on demand. The department reserves
the right to amend or delete any entries in the telephone directory at any time and
undertakes no responsibility for any omission; and it shall not entertain any claim or
compensation on account of any entry in or omission from the telephone directory or
of any therein.

117
 458. Publishing of telephone directory. - Except with the permission of the Telegraph
Authority no person shall publish any list of telephone subscribes.

459. Advertisements. - The Telegraph Authority may publish or allow the publication
of advertisements in the body of the telephone directory."

The court, thus, interpreted the provisions:

Adverting to the question whether Tata's compilation is a telephone directory as

envisaged under the Rules, we may examine the scheme of the Rules. Rule 452
provides that a copy of the telephone directory shall be supplied free of charge for
each telephone, extension or party line, rented by the subscribe. Although the
expression "Telephone Directory" has not been defined under the Rules, but Rule 453
clearly provides that an entry in the Telephone Directory shall contain the telephone
number, the initials, the sir-name and the address of the subscriber or user. Rule 457
makes a telephone directory to be the property of the department. It provides that the
telephone directory shall remain the exclusive property of the department and shall be
delivered to it on demand. The department reserves the right to amend or delete any
entry in the telephone directory at any time and undertakes no responsibility for any
omission. It shall not entertain any claim or compensation on account of any entry in
or omission from the telephone directory or of an error therein. Then come the two
crucial rules.

Rule 458 under the heading "Publishing of Telephone Directory" provides that except
with the permission of the telegraph authority, no person shall publish any list of
telephone subscribes. Rule 459 deals with "advertisements and lays down that the
telegraph authority may publish or allow the publication of advertisements in the body
of the telephone directory. It is no doubt correct that a telephone directory is an
essential instrumentality in connection with the peculiar service which the Union of
India offers for the public benefit and convenience. It is much so as is the telephone
receiver itself, it would be practically useless for the receipt and transmission of
message without the accompaniment of such directories. The telephone service being
a public utility service, the telephone authority has rightly been given powers under
the Act and the Rules to regulate the form and contents of the telephone directory. In
the development of this form of the public utility service, the telegraph authority has
found it practicable and profitable to diminish the cost and increase the profits of
operation by making use of its directories as a means and form of advertising
available to its subscribers. In the typical classified telephone directory, or the "yellow
pages" section of the directory published by the Nigam, there are alphabetical light-
faced type listing (for which there is usually no charge), alphabetical bold faced type
listings, alphabetical in-column business card listing and display advertising. "Yellow
Pages' of the telephone directory are wholly paid advertising. It cannot be disputed
that the paid advertising, apart from the light-faced free listing, is not in the nature of
a service rendered by a utility. The "Yellow Pages" attached to the telephone directory
issued by the Nigam cannot be a part of the Nigam's public telephone service.

The court applied the principle that commercial speech has the protection to the
publication:

118
 Rules 458 and 459 of the Rules have to be interpreted in the light of our; findings that
"commercial speech" by itself is a fundamental right under Article 19(1)(a) of the
Constitution and the paid advertisement comprising "Yellow Pages" attached to the
telephone directory is not a public utility service.

Right to freedom of speech and expression guaranteed under Article (19) (1) (a) of the
Constitution can only be restricted under Article 19(2). The said right cannot be
denied by creating a monopoly in favour of the government or any other authority.
"Publication of advertisements' which is a "commercial speech" and protected under
Article 19(1)(a) of the Constitution cannot be denied to the appellants on the
interpretation of Rues 458 and 459 of the Rules. The plain language of the Rules
indicate that the prohibition under Rule 458 of the Rules is only in respect of
publishing "any list of telephone subscribers". By no stretch of imagination
"publication of advertisements" can be equated with a "list of telephone subscribers".
A "list" is a number of names having something in common written out systematically
one beneath the other. "List of telephone subscriber" in terms of Rule 458 of the Rules
would have to be complied only on the criterion of the persons listed being telephone
subscribers. No person who is not a telephone subscriber could be eligible for
inclusion. The said list would necessarily be restricted to the area serviced by the
Nigam. On the other hand "Tata Press Yellow Pages" is a Buyer's Guide comprising
of advertisements given by traders, businessmen and professionals and the only
basis/criterion applied for acceptance/publication of advertisements is that an
advertiser should be a trader, businessman or professional.

The scheme of the Rules makes it clear that advertisements are treated differently
under the Rules from "list of telephone subscribers". Rule 458 of the Rules intends to
protect the exclusive property rights of Nigam/Union of India created under Rule 457
in respect of the telephone directory prepared in terms of Rule 453. "Publication of
advertisements" being a non-utility service cannot come within the prohibition
imposed by Rules 458 of the Rules.

We, therefore, hold that the Nigam/Union of India cannot restrain the appellant from
publishing "Tata Press Yellow Pages" comprising paid advertisements from
businessman, traders and professionals. We are, however, of the view that the
appellants cannot publish any "list of telephone subscribers" without the permission
of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied
with. The appellant shall not publish in the "Tata Press Yellow Pages" any entries
similar to those which are printed in the 'White Pages' of the "telephone directory"
published by the Nigam under the Rules. We make it clear that the appellant cannot
print/publish an entry containing only the telephone number, the initials, the surname
and the address of the businessman, trader or professional concerned.

The court, thus, established that ‘commercial speech’ too was a part of the freedom
of speech and expression. Any limitation on it must qualify under Article 19(2).

119
 Freedom of Speech and the Internet Shutdown:
Supreme Court of India- I

The internet started as a free unregulated space for exchange and flow of ideas. The
governments have come to regulate it, including a partial or complete shutdown for
varying periods of time. The Supreme Court of India has explored the constitutional
validity of the internet shutdown in ‘the Internet Shutdown Case’. 74 On August 5,
2019, the Government of India brought about constitutional changes in Jammu and
Kashmir, breaking up the state in the Union Territories of Jammu, Kashmir and
Ladhaak. Apprehending unrest, all mobile phone networks, internet services and
landline connectivity were discontinued in the valley. Several applications challenged
the constitutional validity of the internet shutdown before the Supreme Court of India.
The Supreme Court has ruled on the internet, freedom of speech and expression
and limits of the government in constraining it. It is the first judgement from any
constitutional court on the freedom of speech and expression and the internet.

Freedom of Speech and Expression

The judgement is based on the freedom to speech and expression enshrined in the
Constitution of India. The Constitution of India makes no mention of the internet. It
could not have as the internet was not there in 1950 when the constitution was
adopted. The constitution gives protection to the freedom of speech and expression.
Article 19(1) reads:

Article 19: All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
***
(g) to practise any profession, or to carry on any occupation, trade or business.

The freedoms are not absolute and unlimited. Each of the above freedom is
constrained by the subsequent clauses of Article 19. The limitation on the freedom of
speech and expression is in Article 19(2). It reads:

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.

On a plain reading, every citizen has the right to free ‘speech and expression’. The
state, however, can make laws restricting the freedom. The restriction can only be

74
Anuradha Bhasin v Union of India, Supreme Court of India, January 10, 2020.
120
on one or more of the following grounds:

… the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.

If the restriction is not for achieving any of these ends, it must fail. If it qualifies, the
additional requirement is the restriction must be ‘reasonable’ and not more.

The first question before the court was whether use of the internet was covered
under Article 19(1)(a). Only if the answer were yes, would the order of the
government shutting down the internet be subject to judicial review by the court. The
meaning of each of the terms in Article 19, including ‘speech’, ‘expression’ and
‘reasonable’ has developed from case to case over the decades. We will explore this
trajectory. Within this chain of cases, we would be able to understand and locate the
current judgement. In this first parts of the case, we will only explore the expansion
of the term ‘freedom of speech and expression’. The following was the first case
which came before the Supreme Court of India on Article 19(1)(a), within months of
adoption of the constitution in 1950.

Romesh Thappar v. The State of Madras

The Government of Madras perceived the rise of communism. 75 It imposed a ban on

the entry and circulation of a weekly newspaper, Cross Roads. The journal was
printed and published in Mumbai, then Bombay. Romesh Thappar, the printer,
publisher and editor of the newspaper, challenged that the order violated his freedom
of speech. The Supreme Court noted on the scope of the freedom of speech and
expression:

… there can be no doubt that freedom of speech and expression includes freedom of
propagation of ideas, and that freedom is ensured by the freedom of circulation.
Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value. … It is therefore
perfectly clear that the order of the Government of Madras would be a violation of the
petitioner's fundamental right under Art. 19(1)(a), unless … it … is saved by the
reservations mentioned in Cl. (2) of Art. 19.

The Supreme Court drew and relied on the United States Supreme Court
judgements. The Constitution of the United States is the oldest written constitution.
The framers of the Indian constitution drew significantly from it, including the
freedoms in Article 19. The judgements of the US Supreme Court have been widely
employed as support in interpreting the provisions in all these decades. The
corresponding freedom in the Constitution of the United States is in the ‘First
Amendment.’ It protects ‘the freedom of speech, or of the press.’

Having recognised that the freedom of ‘speech and expression’ covered propagation
and circulation, the court moved to appraise if the order was saved by the
reservations stipulated in Article 19(2). In this very first case before the court, the
court noted on the limited grounds for restricting the freedom:
75
Romesh Thappar v. The State of Madras, AIR 1950 SC 124.
121
 … very narrow and stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression and this was doubtless due to
the realisation that freedom of speech and of the press lay at the foundation of all
democratic organisations, for without free political discussion no public education, so
essential for the proper functioning of the processes of popular Government, is
possible. A freedom of such amplitude might involve risks of an abuse. But the
framers of the Constitution may well have reflected with Madison who was 'the
leading spirit in the preparation of the First Amendment of the Federal Constitution’,
that ‘it is better to leave a few of its noxious branches to their luxuriant growth than,
by pruning them away, to injure the vigour of those yielding the proper fruits’.

Evaluating the grounds for the ban by the government of Madras, the court was not
satisfied that the narrow requirements of Article 19(2) were met. It quashed the order
of the government, allowing a free movement of the newspaper in the state of
Madras.

Brij Bhusan v. The State of Delhi

In the early years of the republic, there was religious and communal disharmony. 76
The Chief Commissioner of Delhi took the view that Organiser, an English Weekly
published from Delhi, was publishing highly objectionable material, which posed a
threat to law and order. It ordered the newspaper to submit all communal matter for
scrutiny before publication. Brij Bhusan, the printer, publisher and editor, challenged
that the order violated Article 19. Patanjali Sastri J. for the Supreme Court noted:

There can be little doubt that the imposition of pre-censorship on a journal is a

restriction on the liberty of the press which is an essential part of the right to freedom
of speech and expression declared by Art.19 (1) (a).

Another judge, Fazl Ali, J. noted on the freedom:

It must be recognised that freedom of speech and expression is one of the most
valuable rights guaranteed to a citizen by the Constitution and should be jealously
guarded by the Courts. It must also be recognised that free political discussion is
essential for the proper functioning of a democratic Government …

Evaluating the order, the court judged that it did not meet the requirements of Article
19(2) and quashed the pre-censorship.

Sakal Papers (P) Ltd. v. Union of India

Newspapers had started as individual initiatives during the independence

movement.77 Later, it became an industry. The government appointed a Press
Commission in 1952 to explore and recommend on all aspects of the working of the
newspapers. The Press Commission noted that advertisement was a major source
of revenue for the newspapers enabling them to sell below the cost of production.

76
Brij Bhusan v. The State of Delhi, AIR 1950 SC 129
77
Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
122
The space allocated to advertisements varied from 46% to 59%. The Press
Commission noted that the older established newspapers, with a large and stable
advertisement revenue, were in an advantageous position. They could squeeze out
a new newspaper and small newspapers. The Press Commission emphasised that
the small newspapers too should have a fair chance to sustain themselves and put
forward their views and opinions.

To secure this, the Press Commission recommended a cap on the proportion of

space a newspaper could put to advertising. Further, taking account of all the factors
of the economics of the newspapers, including cost of newsprint, salaries,
commissions and overheads, it prescribed a price schedule. The price schedule
recommended different number of pages and corresponding prices for the
newspapers to sell to their readers. To give effect to the recommendations, the
Parliament enacted the Newspaper (Price and Page) Act, 1956. The preamble of the
legislation read:

An Act to provide for the regulation of the prices charged for newspapers in relation
to their pages and of matters connected therewith for the purpose of preventing unfair
competition among newspapers so that newspapers may have fuller opportunities of
freedom of expression.

The act gave the power to the government to settle the prices for different page
numbers in the newspapers. Following the law, the government issued an order
prescribing the prices.

The order disrupted the functioning of the newspapers. Sakal Papers Private Limited
was a company publishing a newspaper in Marathi from Pune, named Sakal. The
shareholders of the company along with the company challenged the constitutional
validity of the law. They pointed out that Sakal had 34 pages. Following the law, the
newspaper will either have to reduce the pages to 24 or increase the price. If they
reduced the pages, it would diminish dissemination of news and views. If they
increased the price, it would lower the circulation and reduce their reach. Thus, the
law violated their freedom of speech and expression, stated in Article 19(1)(a).

Deciding the constitutional challenge, the Supreme Court first explored whether the
freedom of speech and expression extend to the newspapers. Building on the earlier
cases, the Supreme Court noted:

Our Constitution does not expressly provide for the freedom of press but it has been
held by this Court that this freedom is included in "freedom of speech and expression"
guaranteed by cl. (1) (a) of Art. 19. … The right to propagate one's ideas is inherent in
the conception of freedom of speech and expression. For the purpose of propagating
his idea every citizen has a right to publish them, to disseminate them and to circulate
them. He is entitled to do so either by word of mouth or by writing. The right
guaranteed thus extends … not merely to the matter which he is entitled to circulate,
but also to the volume of circulation. In other words, the citizen is entitled to
propagate his views and reach any class and number of readers as he chooses.

The court formulated to take newspapers and press in the folds of the freedom of
speech. The court noted the basis for this wider reach and extension:

123
 It must be borne in mind that the Constitution must be interpreted in a broad way and
not in a narrow and pedantic sense, Certain rights have been enshrined in our
Constitution as fundamental and, therefore, while considering the nature and content
of those rights the Court must not be too astute to interpret the language of the
Constitution in so literal a sense as to whittle them down. On the other hand the Court
must interpret the Constitution in a manner which would enable the citizen to enjoy
the rights guaranteed by it in the fullest measure.

The court concluded:

Bearing this principle in mind it would be clear, that the right to freedom of speech
and expression carries with it the right to publish and circulate one's ideas, opinions
and views with complete freedom and by resorting to any available means of
publication subject again to such restrictions as could be legitimately imposed under
cl. (2) of Art. 19.

The Government of India claimed that the law was enacted to prevent unfair
competition among the newspapers and prevent the rise of monopolies. Further, the
government asserted that the Act It did not directly or indirectly deal with the subject
of freedom of speech and expression. As a result, even if circulation of Sakal got
reduced, the question of violation of Article 19(1)(a) did not arise. To the contrary,
the government reasoned, the Act strengthened the newspaper business and
furthered the freedom of speech and expression. Thus, the government argued that
it neither intended to nor the law abridges the freedom of speech and expression.

The court readily concluded that limiting advertisement and the price schedule would
lead to increase in price, reducing the circulation of the newspaper. The court
observed that the object of the law was not a relevant consideration. What was
relevant was whether the law directly affected the freedom of speech and
expression. The court noted:

The only question [is] … whether the enactment directly impinges on the guarantee of
freedom of speech and expression. It would directly impinge on this freedom either by
placing restraint upon it or by placing restraint upon something which is an essential
part of that freedom. The freedom of a newspaper to publish any number of pages or
to circulate it to any number of persons is each an integral part of the freedom of
speech and expression. A restraint placed upon either of them would be a direct
infringement of the right of freedom of speech and expression.

The court illustrated it with a law which limited the number of subscribers a
newspaper could have. It asked if the law would attract Article 19(1)(a) and thus
answered it:

The answer must unhesitatingly be no, because such a law would be recognised as
directly impinging upon the freedom of expression which encompasses freedom of
circulation and to restrain the citizen from propagating his views to any other beyond
the limit or number prescribed by the statute. If this were so, the fact that the
legislation achieves the same result by means of the schedule or rates makes no

124
 difference and the impact on the freedom would still be direct notwithstanding that it
does not appear so on its face.

The court recognised that the law ‘directly prohibits a newspaper from exercising that
right’. It noted:

This is a direct invasion of the right under Art. 19(1)(a) and not an incidental or
problematic effect… The distinction between direct and indirect effect of a law upon
the freedom of press has been adverted to in the Express Newspapers case.

In the Express Newspaper case78, several newspaper organisations had challenged

a law enacted by the Parliament which provided for the fixation of salary and working
conditions of the journalists. The newspapers, among others, argued that this
abridged the freedom of speech and expression of the press. The court reasoned:

The likelihood of the independence the press being undermined … would be

remote and depend upon various factors which may or may not come into
play. Unless these were the direct or inevitable consequences of the measures
enacted in the impugned Act, it would not be possible to strike down the
legislation as having that effect and operation.

Coming back to the Sakal case, The Supreme Court recognised that the law was
made on the recommendation of the Press Commission and was to bring protection
to the small newspapers. But this was done by encouraging the circulation of small
newspapers and impeding the circulation of the larger papers. This directly affected
the freedom of speech. The court noted:

Such a course is not permissible and the courts must be ever vigilant in guarding
perhaps the most precious of all the freedoms guaranteed by our Constitution. The
reason for this is obvious. The freedom of speech and expression of opinion is of
paramount importance under a democratic Constitution … No doubt, the law in
question was made upon the recommendation of the Press Commission but since its
object is to affect directly the right of circulation of newspapers which would
necessarily undermine their power to influence public opinion it cannot but be
regarded as a dangerous weapon which is capable of being used against democracy
itself.

The law was to protect and advance public good. But this is not one of the basis for
restricting the freedom of speech under Article 19(2). For this reason, the court
declared the law to be bad.

The Bennett Coleman Case

The newspapers in India were heavily dependent on imported newsprint. 79 The

government of India, under the Import Control Order, 1955 sought to regulate
import, allocation and utilisation of newsprint. Several of the newspapers
challenged that the order limiting availability of the newsprint violated the freedom
of speech and expression. The court, referring to a wide body of literature,
78
Express Newspaper (Private) Ltd. v the Union of India, AIR 1958 SC 578.
79
Bennett Coleman and Co. Ltd. v. Union of India, AIR 1973 SC 106.
125
emphasised the pivotal place of a free press in the modern world and
democracies. Justice Mathew noted:

The matter can be looked at from another angle. The constitutional guarantee of the
freedom of speech is not so much for the benefit of the press as it is for the benefit of
the public. The freedom of speech includes within its compass the right of all citizens
to read and be informed. … the freedom of speech protects two kinds of interest.
There is an individual interest, the need of men to express their opinion on matters
vital to them and a social interest in the attainment of truth so that the country may not
only accept the wisest course but carry it out in the wisest way.

Justice Mathew, noting the significant role of the press in political education,
concluded:

The affirmative obligation of the Government to permit the import of newsprint by

expanding foreign exchange in that behalf is not only because press has a fundamental
right to express itself, but also because the community has a right to be supplied with
information and the Government a duty to educate the people within the limits of its
resources.

The Indian Express Case

In 1981, the Government of India introduced a custom duty on newsprint. The

newspapers were significantly dependent on imported newsprint. Newsprint was
60% of the cost of the newspapers. The newspapers challenged that the
imposition of the customs duty was a violation of the fundamental right of speech
and expression. The Supreme Court noted that the constitution did not use the
expression 'freedom of press' in Article 19 but it was a part of the freedom of
speech and expression. The court noted:

The freedom of press, as one of the members of the Constituent Assembly said, is
one of the items around which the greatest and the bitterest of constitutional
struggles have been waged in all countries where liberal constitutions prevail. The
said freedom is attained at considerable sacrifice and suffering and ultimately it has
come to be incorporated in the various written constitutions.

The court further noted:

The leaders of the Indian independence movement attached special significance to

the freedom of speech and expression which included freedom of press apart from
other freedoms. During their struggle for freedom they were moved by the
American Bill of Rights containing the First Amendment to the Constitution of the
United States of America which guaranteed the freedom of the press.

The court highlighted the role of the press in democracies:

In today's free world freedom of press is the heart of social and political
intercourse. The press has now assumed the role of the public educator making
formal and non-formal education possible in a large scale … The purpose of the
press is to advance the public interest by publishing facts and opinions without

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 which a democratic electorate cannot make responsible judgments.

Thus, the freedom of press was a freedom of speech and expression. Through the
1970s, television network was expanding in India. The following case in on the
freedom of speech and expression in relation to the television.

Odyssey Communications Private Limited v Lokvidayan Sanghatana

While the television made a start in India in 1965, the national network expanded
in the late 1970s.80 Telecasting was a monopoly of the government of India, done
through Doordarshan. Doordarshan was telecasting a serial called Honi Anhoni. A
public interest litigation objected to the serial before the Supreme Court that the
serial was propagating superstition and blind faith by stories of ghosts and rebirth.
The Supreme Court noted on the application of the freedom of speech and
expression to the television:

It can no longer be disputed that the right of a citizen to exhibit films on the
Doordarshan subject to the terms and conditions to be imposed by the Doordarshan
is a part of the fundamental right of freedom of expression guaranteed under Article
19(1)(a) of the Constitution of India which can be curtailed only under
circumstances which are set out in clause (2) of Article 19 of the Constitution of
India. The right is similar to the right of a citizen to publish his views through any
other media such as newspapers, magazines, advertisement hoardings etc. subject to
the terms and conditions of the owners of the media. We hasten to add that what we
have observed here does not mean that a citizen has a fundamental right to establish
a private broadcasting station, or television center. On this question we reserve our
opinion. It has to be decided in an appropriate case.

The court was making a distinction. It recognised that a citizen has the freedom of
speech and expression through the medium of television. Does the right extend
further to the very means, establish and run television stations. The question
raised in a later case.

Life Insurance Corporation of India v. Manubhai D. Shah

Doordarshan refused to telecast a film ‘Beyond Genocide’ on the Bhopal gas

disaster on the ground that it lacked moderation, restraint and fairness. 81 The film
was critical of the government. The decision was challenged before the Supreme
Court. The court noted:

"The words "freedom of speech and expression" must, therefore, be broadly construed
to include the freedom to circulate one's views by words of mouth or in writing or
through audio-visual instrumentalities. It therefore, includes the right to propagate
one's views through the print media or through any other communication channel e.g.
the radio and television. Every citizen of this free country, therefore, has the right to
air his or her views through the printing and/or the electronic media subject of course
to permissible restrictions imposed under Article 19(2) of the Constitution.

80
Odyssey Communications Pvt. Limited v Lokvidayan Sanghatana, AIR 1988 SC 1642.
81
Life Insurance Corporation of India v. Manubhai D. Shah, 1992 AIR SCW 3099.
127
Thus, airing one’s views through the radio and television got established as a
freedom of speech and expression.

Cricket Association of Bengal v. Union of India

As stated earlier, public telecast was established by the government of India and
was a state monopoly.82 The government of India did telecast through
Doordarshan. Doordarshan started telecasting cricket matches. This led to a
massive popularity of cricket and expansion of viewership of the matches.
Doordarshan earned revenue from advertising and shared revenue with the cricket
administering body, the Board of Control for Cricket in India (BCCI). BCCI started
earning significant revenue from the telecast. The matches were international and
thus, there was an international viewership. Doordarshan was the host telecaster.
It would put its camera at the stadium, develop the signal and then, use the feed in
India and sell to the international broadcasters.

In the early 1990s, following economic liberalisation and globalisation, private

television channels got allowed in India. Considering the popularity of the game,
private and foreign television channels were willing to pay a lot more revenue to
the BCCI for the matches than Doordarshan was paying. BCCI moved to award
the telecast rights to a foreign telecaster. The arrangement was for the foreign
telecaster to be the host broadcaster where it would have its cameras in the
stadium, generate the signal and upload it to a satellite through mobile telecasting
van. It will then sell the signal to the telecasters in the different countries who could
receive it and telecast the match. Doordarshan objected and claimed only it could
be the host broadcaster. The dispute case before the Supreme Court. The court
noted the contention of BCCI:

The game of cricket provides entertainment to public. It is a form of expression and

is, therefore, included within the freedom of speech and expression guaranteed by
Article 19(1) (a) of the Constitution. This right includes the right to telecast and
broadcast the matches. This right belongs to the organiser of the matches which
cannot be interfered with by anyone. The organiser is free to choose such agency as it
thinks appropriate for telecasting and broadcasting its matches. The Doordarshan or
the Ministry of Information and Broadcasting can claim no right whatsoever to
telecast or broadcast the said matches. If they wish to do so, they must negotiate with
the organiser and obtain the right. They have no inherent right, much less a monopoly,
in the matter of telecasting and broadcasting these matches. It is not their events.

The Supreme Court ruled:

In our country, since the organisation of an event is an aspect of the fundamental

right to freedom of speech and expression protected by Article 19 (1) (a), the law
can be made to control the organisation of such events only … as laid down under
Article 19(2) of the Constitution. … a law can be made for restricting or prohibiting
the organisation of the event itself, and also for telecasting it, on the same grounds
as are mentioned in Article 19(2). There cannot, however, be restrictions on
producing and recording the event on grounds not permitted by Article 19(2). For
the same reasons, the publication or communication of the recorded event through
82
Cricket Association of Bengal v. Union of India, AIR 1995 SC 1236.
128
 the mode of cassettes cannot be restricted or prevented except under such law. All
those who have got the apparatus of video cassette recorder (VCR) and the
television screen can, therefore, view and listen to such recorded event.

The court noted ‘a game of cricket like any other sports event provides
entertainment - and entertainment is a facet, a part, of free speech.’ It can be
subject to the limitations only under Article 19(2). Thus, BCCI can record the event
and propagate it. But whether it could set up a mobile van to uplink to a satellite
would be a different and further question. As the government of India further
liberalised foreign and private telecasters, this further questioned ceased to be
important and did not get decided.

The Internet Shutdown Case

Coming to the present case, Anuradha Bhasin was one of the petitioners before
the court. She was the executive editor of one of the major newspapers. Her
contention was the print media came to a grinding halt due to non-availability of
the internet services. Her contention was the internet was absolutely essential for
the modern press. Further, curtailment of the internet, is a restriction on the right to
free speech. The second aspect of the internet shutdown was its effect on
businesses. The questions framed by the court for answering the challenge
included:

Whether the freedom of speech and expression … over the Internet is a part of the
fundamental rights under Part III of the Constitution?

Whether the … freedom to practise any profession, or to carry on any occupation,

trade or business over the Internet is a part of the fundamental rights under Part III
of the Constitution?

Whether the Government's action of prohibiting internet access is valid?

The Supreme Court noted the overwhelming presence of the internet as medium
for communication:

There is no gainsaying that in today's world the internet stands as the most utilized
and accessible medium for exchange of information. The revolution within the
cyberspace has been phenomenal in the past decade, wherein the limitation of storage
space and accessibility of print medium has been remedied by the usage of internet.
…from morning to night we are encapsulated within the cyberspace and our most
basic activities are enabled by the use of internet.

The court located the freedom of speech over the internet in the context of its earlier
judgement over the decades. It noted:

… this Court, in a catena of judgments, has recognized free speech as a fundamental

right, and, as technology has evolved, has recognized the freedom of speech and
expression over different media of expression. Expression through the internet has
gained contemporary relevance and is one of the major means of information
diffusion. Therefore, the freedom of speech and expression through the medium of

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 internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the
same must be in accordance with Article 19(2) of the Constitution.

The court further noted:

There is no dispute that freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as is possible. The
wider range of circulation of information or its greater impact cannot restrict the
content of the right nor can it justify its denial.

The court noted on the question of doing business with and over the internet:

In this context, we need to note that the internet is also a very important tool for trade
and commerce. The globalization of the Indian economy and the rapid advances in
information and technology have opened up vast business avenues and transformed
India as a global IT hub. There is no doubt that there are certain trades which are
completely dependent on the internet. Such a right of trade through internet also
fosters consumerism and availability of choice. Therefore, the freedom of trade and
commerce through the medium of the internet is also constitutionally protected under
Article 19(1)(g), subject to the restrictions provided under Article 19(6).

There is a distinction between the freedom of speech and expression through the
internet and the freedom to the internet itself. That is, the distinction between ‘the
internet as a tool and the freedom of expression through the internet.’ The court
noted on this aspect:

At this point it is important to note the argument of Mr. Vinton G. Cerf, one of the
'fathers of the internet'. He argued that while the internet is very important, however,
it cannot be elevated to the status of a human right. Technology, in his view, is an
enabler of rights and not a right in and of itself. He distinguishes between placing
technology among the exalted category of other human rights, such as the freedom of
conscience, equality etc. With great respect to his opinion, the prevalence and extent
of internet proliferation cannot be undermined in one's life.

The court left the question of the right over the internet open. It noted:

None of the counsels have argued for declaring the right to access the internet as a
fundamental right and therefore we are not expressing any view on the same. We are
confining ourselves to declaring that the right to freedom of speech and expression
under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g),
using the medium of internet is constitutionally protected.

The court, thus, concluded:

We declare that the freedom of speech and expression and the freedom to practice
any profession or carry on any trade, business or occupation over the medium of
internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).
The restriction upon such fundamental rights should be in consonance with the
mandate under Article 19 (2) and (6) of the Constitution.

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The court proceeded to examine whether the restriction on the freedom was
‘reasonable’.

Conclusion

The Constitution of India recognizes the freedom of speech and expression. As the
courts are the guarantors of the right, the Supreme Court has interpreted the right in
a broad expansive way. The freedom has come to include to publish and circulate
one's ideas, opinions and views through all mediums including print, radio and
television. In this case, the court has extended the freedom of speech and
expression over the medium of the internet. As a result, a law restricting citizens
from communicating over the internet must qualify under Article 19(2) to be valid. We
will turn to this aspect in the second part of the case.

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 Right to Business, Trade and Profession: The Call Drop Case

A cell phone user in India is familiar with the term ‘call drop’. A phone user
successfully connects a call, and then, while the conversation is on, the connection
snaps. It may snap abruptly or following disruptions. The telecom regulatory body,
the Telecom Regulatory Authority of India (TRAI) made regulations awarding a
compensation to the caller, at the rate of Rs. 1 per drop call, with a maximum of
three drop calls a day. The cellular operators challenged the constitutional validity of
the law on the grounds of the right to equality. The Supreme Court in its judgement,
Cellular Operators Association of India v. Telecom Regulatory Authority of India 83
has developed ‘manifest arbitrariness’ being a ground for the violation of the right to
equality enshrined in Article 14 of the constitution.

The Cellular Operators and TRAI

Since the mid-1990s, the Central Government has been giving licences to
companies to run mobile phone and data services. This has been done under the
Indian Telegraph Act, 1885. The law from the prior century gives wide powers and
monopoly to the government on everything connected with telecommunications. The
Central Government gave licences for different states and regions. The licences
have several standard terms and conditions. The conditions require the operator to
establish a state of the art digital network and provide and maintain services of good
standards. The Central government had the power to modify the terms of these long
term licences in public interest or for proper conduct of the services. Within the
terms, the operator has to ensure that the coverage of a district headquarters/town is
at least 90% of the area bounded by the municipal limits. The conditions also provide
for liquidated damages to be paid by the operator for certain defaults.

Alongside, the Parliament enacted the Telecom Regulatory Authority of India Act,
1997 to constitute a telecommunications regulatory body, the Telecom Regulatory
Authority of India (TRAI). The Act gave wide powers to TRAI to make regulations for
a fair and sustainable development of the telecommunication sector. TRAI made
several regulations, governing different aspects of the sector. The first one relevant
for the case is, the Quality of Service Regulation, 2009. As the title suggests, the
regulation required the operators to maintain certain quality of service. The second
relevant regulation was the Telecom Consumers Protection Regulations, 2012. The
regulation made measures for the protection of the mobile subscribers.

Shortage of mobile towers was a major impediment in strengthening the cellular

phone service. There was a constant tussle between the operators and municipal
authorities. The municipal authorities were apprehension that radiation from the
towers was harmful to human health, and restricted the setting up of cell phone
towers. The two ended up in court battles. The Central Government, to facilitate the
digital network, wrote to the state governments to grant timely permissions for
establishing telecom towers.

83
Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR
2016 SC 2336.
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TRAI was well aware of the constraints and impediments. Recognising it, the Quality
of Service Regulation, 2009 permitted 2% call drop rate for the operator averaged
over a month. A call drop was a customer successfully connected to another and
then, the call snapped.

TRAI was receiving complaints from the customers on call drop. It issued a
consultation paper, "Compensation to the Consumers in the event of dropped calls"
and circulated it for comments and suggestions from the stakeholders, including the
consumer groups and cellular operators. According to TRAI, the consumers wanted
relief for the call drop. The operators, on the other hand, brought out to TRAI that
closing down of towers by the municipal authorities was the reason for call drops.
Following the consultation, in 2015, TRAI amended the Telecom Consumers
Protection Regulations, 2012 to introduce provisions on call drop. The Explanatory
Memorandum, thus, summarised the position of TRAI:

After a careful analysis, the Authority has come to the conclusion that call drops are
instances of deficiency in service delivery on part of the [operator] which cause
inconvenience to the consumers, and hence, it would be appropriate to put in place a
mechanism for compensating the consumers in the event of dropped calls. The
Authority is of the opinion that compensatory mechanism should be kept simple for
the ease of consumer understanding and its implementation by the [operator]. While
one may argue that amount of compensation should be commensurate to the loss/
suffering caused due to an event but in case of a dropped call it is difficult to quantity
the loss/suffering/inconvenience caused to the consumers as it may vary from one
consumer to another and also in accordance to their situations. Accordingly, the
Authority has decided to mandate originating [operator] to credit one Rupee for a
dropped call to the calling consumers as notional compensation. Similarly, the
Authority has decided that such credit in the account of the calling consumer shall be
limited to three dropped calls in a day (00:00:00 hours to 23:59:59 hours). The
Authority is of the view that such a mandate would compensate the consumers for the
inconvenience caused due to interruption in service by way of call drops, to a certain
extent.

The amendment to the Telecom Consumers Protection Regulations, 2012

introduced and defined a call drop to read:

"call drop" means a voice call which, after being successfully established, is
interrupted prior to its normal completion; the cause of early termination is within the
network of the service provider.

For a call drop, a ‘calling consumer’ was provided relief and compensation, who was,
‘a consumer who initiates a voice call’. The relief was introduced as article 16 in the
regulation. It read:

16. Measures to provide relief to consumers. - Every originating service provider

providing Cellular Mobile Telephone Service shall, for each call drop within its
network,

(a) credit the account of the calling consumer by one rupee:

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 Provided that such credit in the account of the calling consumer shall be limited to
three dropped calls in a day (00:00:00 hours to 23:59:59 hours);

(b) provide the calling consumer, through SMS/USSD message, within four hours of
the occurrence of call drop, the details of amount credited in his account; and

(c) in case of post-paid consumers, provide the details of the credit in the next bill.

Cellular Operators Association of India, the representative body of cellular operators,

challenged the constitutional validity of the amendment. It contended that the
requirement of payment for a call drop was an arbitrary provision to penalise the
operator and violated the right to equality in Article 14 of the constitution. The second
contention was it violated the fundamental right of trade, occupation and profession
in article 19(6) of the constitution. We will explore the second contention.

Article 19

The relevant part of Article 19 reads:

19. (1) All citizens shall have the right— …. (g) to practise any profession, or to carry
on any occupation, trade or business.

…..

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the exercise
of the right conferred by the said sub-clause, and, in particular, nothing in the said
sub-clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any

profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by

the State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.

The court noted:

When we come to Article 19(1)(g) of the Constitution, the tests for challenge to
plenary legislation are well settled. First and foremost, a sea change took place with
the 11-Judge Bench judgment in Rustom Cavasjee Cooper (Banks Nationalisation) v.
Union of India, (AIR 1970 SC 564), in which the impact of State action upon
fundamental rights was stated thus :-

"We have carefully considered the weighty pronouncements of the eminent

Judges who gave shape to the concept that the extent of protection of
important guarantees, such as the liberty of person, and right to property,
depends upon the form and object of the State action, and not upon its direct

134
 operation upon the individual's freedom. But it is not the object of the
authority making the law impairing the right of a citizen, nor the form of
action taken that determines the protection he can claim: it is the effect of the
law and of the action upon the right which attracts the jurisdiction of the Court
to grant relief. If this be the true view and we think it is, in determining the
impact of State action upon constitutional guarantees which are fundamental,
it follows that the extent of protection against impairment of a fundamental
right is determined not by the object of the Legislature nor by the form of the
action, but by its direct operation upon the individual's rights.

Under Article 19(6) of the Constitution, the State has to conform to two separate and
independent tests if it is to pass constitutional muster - the restriction on the
appellants' fundamental right must first be a reasonable restriction, and secondly, it
should also be in the interest of the general public. Perhaps the best exposition of what
the expression "reasonable restriction" connotes was laid down in Chintaman Rao v.
State of Madhya Pradesh,(AIR 1951 SC 118), as follows:-

The phrase "reasonable restriction" connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is, the choice of a
course which reason dictates. Legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom guaranteed in Article
19(1)(g) and the social control permitted by clause (6) of Article 19, it must be
held to be wanting in that quality.

It is interesting to note that the original Constitution, while enumerating various rights
under Article 19(1), when it referred to the right of freedom of speech in Article 19(1)
(a), laid down in Article 19(2) that any law abridging the right to freedom of speech
could only pass constitutional muster if it related to any of the subjects laid down in
clause (2). What was conspicuous by its absence was the phrase "reasonable
restriction", which was only brought in by the first amendment to the Constitution.

Similarly, the first amendment to the Constitution also amended Article 19(6), with
which we are directly concerned, to provide for a State monopoly, which would not
have to be tested on the ground of reasonable restrictions. Therefore, the first
amendment to the Constitution of India has made it clear that reasonable restrictions,
added in Article 19(2) and subtracted from Article 19(6) (insofar as State monopolies
are concerned), point to the fact that this test is a test separate and distinct from the
test of the law being in the interest of the general public. Why we are at pains to point
this out is because the learned Attorney General's argument focused primarily on the
Impugned Regulation being in the public interest. He referred to Delhi Science Forum
v. Union of India, (AIR 1996 SC 1356), for the proposition that TRAI, as an active
trustee, has framed this Regulation for the common good. While accepting that TRAI
may have done so, yet it is important to note that, apart from the common good in the
form of consumer interest, the Regulation must also pass a separate and independent
test of not being manifestly arbitrary or unreasonable. We cannot forget that when
viewed from the angle of manifest arbitrariness or reasonable restriction, sounding in
Article 14 and Article 19(1)(g) respectively, the Regulation must, in order to pass

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 constitutional muster, be as a result of intelligent care and deliberation, that is, the
choice of a course which reason dictates. Any arbitrary invasion of a fundamental
right cannot be said to contain this quality. A proper balance between the freedoms
guaranteed and the control permitted under Article 19(6) must be struck in all cases
before the impugned law can be said to be a reasonable restriction in the public
interest.

The court, thus, applied the provision to the case before it:

The learned Attorney General has argued that the Impugned Regulation accords with
the Statement of Objects and Reasons of the TRAI Act, 1997. As has been pointed out
by us, the original Act was amended in the year 2000, in which its Preamble was
substituted. The substitution indicates that the policy of the 1997 Act, as amended by
the 2000 Act, is to protect the interests of service providers and consumers of the
telecom sector together, so that the orderly growth of the telecom sector is ensured
thereby. We are afraid that the orderly growth of the telecom sector cannot be ensured
or promoted by a manifestly arbitrary or unreasonable regulation which makes a
service provider pay a penalty without it being necessarily at fault.

We were then told that the Impugned Regulation was framed keeping in mind the
small consumer, that is, a person who has a pre-paid SIM Card with an average
balance of Rs.10/- at a time, and that the Regulation goes a long way to compensate
such person. The motive for the Regulation may well be what the Attorney General
says it is, but that does not make it immune from Article 14 and the twin tests of
Article 19(6). The Authority framing the Regulation must ensure that its means are as
pure as its ends - only then will regulations made by it pass constitutional muster.

We were also told that huge profits were made by the service providers, and that the
amount they would have to pay would not even be a flea bite compared to the profits
they make, viewed in the background that they are not pouring in enough funds for
infrastructure development. This was stoutly resisted by the appellants, pointing out
that the so called huge profits earned is misleading, as the figure of net debt is far
greater than that of revenue earned, and that huge sums had been pumped in for
infrastructure development. Without going into the factual controversy thus presented,
there are two answers to this submission. First and foremost, whether the service
providers make profits or losses cannot be said to be relevant for determining whether
the Impugned Regulation is otherwise arbitrary or unreasonable. If the Attorney
General were correct, then the converse proposition would also be true - namely, that
even if all the service providers were suffering huge losses, then such regulation,
since it makes them fork out crores of rupees and add to their losses, would have to be
held to be unconstitutional. Assuming that six out of the twelve service providers
make profits, and the other six make losses, the Impugned Regulation cannot be held
to be constitutional so far as those making a profit, and unconstitutional qua those
making losses. And what if the same service provider makes a profit in one year and a
loss in the succeeding year. Is the Impugned Regulation unconstitutional in the first
year and constitutional in the succeeding year? Obviously not. Secondly, it is always
open to the Authority, with the vast powers given to it under the TRAI Act, to ensure,
in a reasonable and non-arbitrary manner, that service providers provide the necessary
funds for infrastructure development and deal with them so as to protect the interest of
the consumer. Consequently, this submission is also without substance.

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The court further noted:

We now come to a very important part of the submissions made on behalf of the
appellants. The appellants have strongly contended that a 2% allowance of call drops
on the basis of averaging call drops per month has been allowed to them by the
Quality of Service Regulations already referred to hereinabove. This would amount to
the Authority penalizing the service provider even when it complies with another
regulation made under the same source of power, and for this reason alone, the
Impugned Regulation must be held to be bad as being manifestly arbitrary. The
learned Attorney General refuted this submission in two ways. First, he argued that
Quality of Service Regulations and regulations made to benefit consumers must be
viewed separately, as they are distinct regulations in parallel streams. He also argued
that the 2% average allowance for call drops is different and distinct from paying
compensation for call drops inasmuch as, conceivably, in a given set of facts, call
drops may take place extensively in a given sector but not in other sectors so that an
average of 2% per month is yet maintained, but the service provider would be
penalized as it has not been able to maintain a 3% standard laid down qua deficiency
of service in individual towers leading to call drops. However, the persons who suffer
in the sector in which call drops are many and frequent would then have no
protection. We are afraid neither of these reasons avails the Authority. First and
foremost, the 2009 Quality of Service Regulation is made under Section 11(1)(b)(v),
which is the very Section which is claimed to be the source of the Impugned
Regulation. Secondly, both Regulations deal with the same subject matter - namely,
call drops, and both Regulations are made in the interest of the consumer. If an
average of 2% per month is allowable to every service provider for call drops, and it
is the admitted position that all service providers before us, short of Aircel, and that
too in a very small way, have complied with the standard, penalizing a service
provider who complies with another Regulation framed with reference to the same
source of power would itself be manifestly arbitrary and would render the Regulation
to be at odds with both Articles 14 and 19(1)(g).

In this regard, it would be of assistance to note what this Court held in The Lord
Krishna Sugar Mills Ltd. and Anr. v. Union of India and Anr., [1960] 1 SCR 39 :
(AIR 1959 SC 1124).

"It is, however, contended that though one can look at the surrounding
circumstances, it is not open to the Court to examine other laws on the subject,
unless those laws be incorporated by reference. In our opinion, this is a
fallacious argument. The Court in judging the reasonableness of a law, will
necessarily see, not only the surrounding circumstances but all
contemporaneous legislation passed as part of a single scheme. The
reasonableness of the restriction and not of the law has to be found out, and if
restriction is under one law but countervailing advantages are created by
another law passed as part of the same legislative plan, the Court should not
refuse to take that other law into account. " [at para 56] (at Para 26 of AIR).

In view of the aforesaid, it is clear that the Quality of Service Regulations and the
Consumer Regulations must be read together as part of a single scheme in order to
test the reasonableness thereof. The countervailing advantage to service providers by

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way of the allowance of 2% average call drops per month, which has been granted
under the 2009 Quality of Service Regulations, could not have been ignored by the
Impugned Regulation so as to affect the fundamental rights of the appellants, and
having been so ignored, would render the Impugned Regulation manifestly arbitrary
and unreasonable.

Secondly, no facts have been shown to us which would indicate that a particular area
would be filled with call drops thanks to the fault on the part of the service providers
in which consumers would be severely inconvenienced. The mere ipse dixit of the
learned Attorney General, without any facts being pleaded to this effect, cannot
possibly make an unconstitutional regulation constitutional. We, therefore, hold that a
strict penal liability laid down on the erroneous basis that the fault is entirely with the
service provider is manifestly arbitrary and unreasonable. Also, the payment of such
penalty to a consumer who may himself be at fault, and which gives an unjustifiable
windfall to such consumer, is also manifestly arbitrary and unreasonable. In the
circumstances, it is not necessary to go into the appellants' submissions that call drops
take place because of four reasons, three of which are not attributable to the fault of
the service provider, which includes sealing and shutting down towers by municipal
authorities over upon they have no control, or whether they are attributable to only
two causes, as suggested by the Attorney General, being network related causes or
user related causes. Equally, it is not necessary to determine finally as to whether the
reason for a call drop can technologically be found out and whether it is a network
related reason or a user related reason.

In Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise, (2015 AIR
SCW 6453), Rules 96 -ZO, ZP and ZQ of the Central Excise Rules, 1994, which
consisted inter alia of penalty provisions, were struck down by this Court. One of the
reasons for striking down the aforesaid Rules is that a mandatory penalty became
leviable despite the fact that fault on the part of assessee could not be established.
This Court held:

"It is also correct in saying that there may be circumstances of force majeure
which may prevent a bona fide assessee from paying the duty in time, and on
certain given factual circumstances, despite there being no fault on the part of
the assessee in making the deposit of duty in time, a mandatory penalty of an
equivalent amount of duty would be compulsorily leviable and recoverable
from such assessee. This would be extremely arbitrary and violative of Article
14 for this reason as well. Further, we agree with the High Court in stating that
this would also be violative of the appellant's fundamental rights under Article
19(1)(g) and would not be saved by Article 19(6), being an unreasonable
restriction on the right to carry on trade or business. Clearly the levy of
penalty in these cases of a mandatory nature for even one day's delay, which
may be beyond the control of the assessee, would be arbitrary and excessive."

In the present case, also, a mandatory penalty is payable by the service provider for
call drops that may take place which are not due to its fault, and may be due to the
fault of the recipient of the penalty, which is violative of Articles 14 and 19(1)(g).

The reason given in the Explanatory Memorandum for compensating the consumer is
that the compensation given is only notional. The very notion that only notional

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compensation is awarded, is also entirely without basis. A consumer may well suffer a
call drop after 3 or 4 seconds in a voice call. Whereas the consumer is charged only 4
or 5 paise for such dropped call, the service provider has to pay a sum of rupee one to
the said consumer. This cannot be called notional at all. It is also not clear as to why
the Authority decided to limit compensation to three call drops per day or how it
arrived at the figure of Re.1 to compensate inconvenience caused to the consumer. It
is equally unclear as to why the calling party alone is provided compensation because,
according to the Explanatory Memorandum, inconvenience is suffered due to the
interruption of a call, and such inconvenience is suffered both by the calling party and
the person who receives the call. The receiving party can legitimately claim that his
inconvenience when a call drops, is as great as that of the calling party. And the
receiving party may need to make the second call, in which case he receives nothing,
and the calling party receives Re.1 for the additional expense made by the receiving
party. All this betrays a complete lack of intelligent care and deliberation in framing
such a Regulation by the Authority, rendering the Impugned Regulation manifestly
arbitrary and unreasonable.

However, the learned Attorney General referred to a recent judgment being DSC-
Viacon Ventures Pvt. Ltd. (Now Known as DSC Ventures Pvt. Ltd) v. Lal Manohar
Pandey and Ors., (Civil Appeal Nos. 6781-6782 of 2015, decided on August 27,
2015). He referred to paragraph 21 in order to show that a certain amount of guess
work is unavoidable in matters of this nature.

The context in which this statement occurs in paragraph 21 is very different from the
present context. This Court held that a toll can only be collected for maintaining a
road. The patches in which the road is not properly maintained should reduce
proportionately the amount of toll that is to be paid. As there was no data in that case
to indicate the extent of road length and the resultant inconvenience to users of the
road, a certain amount of guess work was said to be unavoidable. The present is a case
in which we are not informed as to how rupee one is computed, how three call drops
per day has been arrived at, or why the calling party alone is provided compensation.
These matters go out of mere guess work, and into the realm of unreasonableness, as
obviously, as has been held by us, there was no intelligent care and deliberation
before any of these parameters have been fixed.

We have already seen that the Impugned Regulation is dated 16.10.2015, which was
to come into force only on 1.1.2016. We have been shown a technical paper issued by
the same Authority on 13.11.2015 i.e. a few days after the Impugned Regulation, in
which the Authority has itself recognised that 36.9% of call drops take place because
of the fault at the consumer's end. Instead of having a relook at the problem in the
light of the said technical paper, the Authority has gone ahead with the Impugned
Regulation, which states that the said Regulation has been brought into force because
of deficiency of service in service providers leading to call drops. The very basis of
this statement contained in the Explanatory Memorandum to the Impugned
Regulation is found by the self-same Authority to be incorrect only a few days after
publishing the Impugned Regulation. This itself shows the manifest arbitrariness on
the part of the TRAI, which has not bothered to have a relook into the said problem.
For all the aforesaid reasons, we find that the Impugned Regulation is manifestly
arbitrary and therefore, violative of Article 14, and is an unreasonable restriction on

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 the right of the appellants' fundamental right under Article 19(1)(g) to carry on
business, and is therefore, struck down as such.

Viewed at from a slightly different angle it is clear that if an individual consumer

were to go to the Consumer Forum for compensation for call drops, he would have to
prove that the call drop took place due to the fault of the service provider. He would
further have to prove that he has suffered a monetary loss for which he has to be
compensated, which the Explanatory Memorandum itself says is impossible to
compute. Thus, the Impugned Regulation completely avoids the adjudicatory process,
and legislatively lays down a penal consequence to a service provider for a call drop
taking place without the consumer being able to prove that he is not himself
responsible for such call drop and without proof of any actual monetary loss. Whereas
individual consumers, either before the Consumer Forum, or in a dispute as a group
with service providers before the TRAI, would fail in an action to recover
compensation for call drops, yet a statutory penalty is laid down, applicable
legislatively, and without any adjudication. This again makes the Impugned
Regulation manifestly arbitrary and unreasonable.

The court concluded that the regulation was unreasonable and violative of the
constitution.

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 Right to Privacy: A fundamental Right?

We all value our privacy, the autonomy to be left alone. Yet individuals are
embedded in a social context and in a dynamic relationship with the rest of the
society. The relationships pose questions on the boundaries of this autonomy. Is
the right to privacy a fundamental right and a constitutionally protected value? This
is a foundational question with far reaching implications for individuals and the
society. If it is not a fundamental right, a law made by the state would have no
bounds and be beyond judicial review. On the other hand, if it were a fundamental
right, there would be a balancing between the right of an individual’s privacy and
the social goods, leaving a space for the individual inviolate. The question came
before the Supreme Court in the Aadhaar Case.

The Central Government started the Aadhaar Card Scheme under which every
citizen had to furnish several demographic and biometric data. A public interest
litigation challenged the constitutional validity of the scheme before the Supreme
Court. It was claimed before the court that the right to privacy was a fundamental
right and constitutionally guaranteed. The government argued that the Supreme
Court in two cases in the early decades of the constitution settled the question by
declaring that the right to privacy was not a fundamental right. Further, as those
judgements were by a bench of eight and six judges, the Supreme Court with a
bench of three judge could not review the position. The petitioners claimed that the
judgements were not valid and the Supreme Court in several subsequent cases
had recognised the right to privacy to be a fundamental right. Considering the
doubts surrounding the question, the court made a reference to a nine bench
judge of the Supreme Court to settle the question whether the right to privacy was
a fundamental right. The decision on the Aadhaar Case was put on hold awaiting
the decision of the nine bench judge. This came to be the Right to Privacy Case.

In this first part of this review, we will explore the two early cases on the theme of
privacy. Before that, we note the constitutional provisions.

Constitutional Provisions

The Constitution of India makes no mention of privacy. It was not a discernible

theme for the constitution makers to have specifically provided on it. The question of
the right to privacy would arise in relation to other protections. We could note some
of them. The chapter on the fundamental rights has a heading of right to freedom.
Under this heading, the first article is Article 19 which reads:

Article 19(1): All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
***
(g) to practise any profession, or to carry on any occupation, trade or business.

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The freedoms are not absolute and unlimited. Each of the above freedom is
constrained by the subsequent clauses of Article 19. For example, the limitation on
the freedom of speech and expression is in Article 19(2). It reads:

"(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence."

Articles 20, 21 and 22 of the constitution read:

20. (1) No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the Act charged as an offence …

21. No person shall be deprived of his life or personal liberty except according to
procedure established by law.

22. (1) No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied
the right to consult, and to be defended by, a legal practitioner of his choice. …

We can now review the cases which came before the court bearing a relationship
to the right to privacy.

Part 1: The Right to Privacy Case: Do past cases deny privacy?

The Gopalan Case

Take the case where a person is restrained from giving a speech in a rally. This
clearly attracts Article 19(1)(a) ‘freedom of speech and expression’. But it is also a
restrain on ‘person liberty’ and should attract Article 21. The illustration can be
multiplied. A person put under house arrest attracts Article 19(1)(d), as he cannot
freely move throughout India and also attracts Article 21. Invariably, a violation of a
freedom would have overlaps. In these cases, should all the articles be applied or
only one of them be applied? The question is an important one. For a law to clear
Article 19, it must meet the criterion of reasonableness stated in the article. For a
law to clear Article 21, it must be by a ‘procedure established by law’. If only one
article applies, it only has to clear the requirement of that article. If both apply, the
law has to meet both the criterion. The restriction has to not only be reasonable
but also in accordance with procedure established by law. The question on reading
of the chapter on the fundamental rights came early, in the Gopalan Case. The
case was on preventive detention.

Preventive detention attracted Article 22 which provides on arrest and detention. It

is a complete code on the subject. But a detention also impedes a free movement
of a person. The court construed the relationship between Articles 19 and 21 to be

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one of mutual exclusion. According to the court, what was comprehended by
Article 19 was excluded from Article 21. The court noted:

Reading Article 19 in that way it appears to me that the concept of the right to move
freely throughout the territory of India is an entirely different concept from the right
to "personal liberty" contemplated by Article 21. "Personal liberty" covers many
more rights in one sense and has a restricted meaning in another sense. For
instance, while the right to move or reside may be covered by the expression,
"personal liberty" the right to freedom of speech (mentioned in Article 19(1)(a)) or
the right to acquire, hold or dispose of property (mentioned in 19(1)(f)) cannot be
considered a part of the personal liberty of a citizen. They form part of the liberty of
a citizen but the limitation imposed by the word "personal" leads me to believe that
those rights are not covered by the expression personal liberty. So read there is no
conflict between Articles 19 and 21. The contents and subject-matters of Articles 19
and 21 are thus not the same and they proceed to deal with the rights covered by
their respective words from totally different angles.

Justice Fazl Ali dissented. The dissent adopted the view that the fundamental
rights are not isolated and separate but protect a common thread of liberty and
freedom. He noted:

To my mind, the scheme of the Chapter dealing with the fundamental rights does
not contemplate what is attributed to it, namely, that each article is a code by itself
and is independent of the others. In my opinion, it cannot be said that Articles
19,20, 21 and 22 do not to some extent overlap each other. The case of a person
who is convicted of an offence will come under Articles 20 and 21 and also under
Article 22 so far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with Article 22, also amounts to deprivation of
personal liberty which is referred to in Article 21, and is a violation of the right of
freedom of movement dealt with in Article 19(1)(d)... It seems clear that the
addition of the word "personal" before "liberty" in Article 21 cannot change the
meaning of the words used in Article 19, nor can it put a matter which is
inseparably bound up with personal liberty beyond its place.

The majority view was to see each article as a core in itself and only one article
would apply to a case.

M. P. Sharma Case

The central government ordered an investigation into the affairs of a company, on

the grounds that the company management had embezzled funds and concealed
its true affairs from the shareholders. Offences were registered and search
warrants issued against the company. The company challenged that the search
warrant violated its fundamental rights. Article 20(3) reads: ‘No person accused of
any offence shall be compelled to be a witness against himself.’ The company
claimed that the search by the government violated this right. The court noted:

...there is no basis in the Indian law for the assumption that a search or seizure of a
thing or document is in itself to be treated as compelled production of the same.
Indeed a little consideration will show that the two are essentially different matters

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 for the purpose relevant to the present discussion. A notice to produce is addressed
to the party concerned and his production in compliance therewith constitutes a
testimonial act by him within the meaning of Article 20(3) as above explained. But
a search warrant is addressed to an officer of the Government, generally a police
officer. Neither the search nor the seizure are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are,
therefore, not his testimonial acts in any sense.

The fourth amendment of the US Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.

Reliance was placed on a judgment Boyd v. United States, 116 US 616 (1886) of
the US Supreme Court holding that obtaining incriminating evidence by an illegal
search and seizure violates the Fourth and Fifth Amendments of the American
Constitution. The Supreme Court noted:

A power of search and seizure is in any system of jurisprudence an overriding

power of the State for the protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the Fourth Amendment, we have no justification to import it,
into a totally different fundamental right, by some process of strained construction.
Nor is it legitimate to assume that the constitutional protection under Article 20(3)
would be defeated by the statutory provisions for searches.

The Kharak Singh Case

Kharak Singh was accused of dacoity in 1941 but was released as there was no
evidence against him. Following this, the police opened a "history sheet" on him. The
Indian Police Act and the regulations created under it gave wide powers to the
government to keep track of the movement of a history sheeter, make visits at any
time and search premises. The police was keeping track of who came to visit him,
wake him up at night and search his premises. Kharak Singh challenged the Act and
regulations which gave these powers to the police under article 19 and 21 of the
constitution. It was a fractured judgement. Justice Ayyangar gave the majority
judgement. He applied the Gopalan principle of treating each article as an isolated
code. Kharak Singh argued that constant watch and midnight knock impeded his free
movement and thus, violated Article 19(1)(d). Justice Ayyangar noted:

… the "freedom" here guaranteed is a right "to move freely" throughout the territory
of India. … the right of "move" denotes nothing more than a right of locomotion, and
that in the context the adverb "freely" would only connote that the freedom to move is
without restriction and is absolute, i.e., to move wherever one likes, whenever one
likes and however one likes subject to any valid law enacted or made under cl. (5).

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Justice Ayyangar, thus, constructing that Art 19(1)(d) was limited to bodily freedom
to be able to move around. The court continued:

It is manifest that by the knock at the door, or by the man being roused form his sleep,
his locomotion is not impeded or prejudiced in any manner. … we are clear that the
freedom guaranteed by Art. 19 (1)(d) has reference to something tangible and
physical rather and not to the imponderable effect on the mind of a person which
might guide his action in the matter of his movement or locomotion.

Thus, the court found article 19 to be inapplicable.

The judge having concluded there was no remedy under Art 19(1)(d) moved to
analyse Art 21. The judge noted the article is modelled on the 5 th and 14th
Amendments to the US Constitution which reads: ‘No person......shall be deprived of
life, liberty or property without due process of law.’ Field, J. in Munn v. Illinois, (1876)
94 US 113 observed:

"By the term 'life' as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all these limits and faculties by which
life is enjoyed. The provision equally prohibits the mutilation of the body or
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. …By
the term liberty, as used in the provision something more is meant than mere freedom
from physical restraint or the bounds of a prison.

The court noted that the term used in Art 21 was ‘personal liberty’ and ‘therefore its
content is narrower.’ The court based the reason for this in the Gopalan case. It
noted:

But the qualifying adjective has been employed in order to avoid overlapping between
those elements or incidents of "liberty" like freedom of speech, or freedom of
movement etc. already dealt with in Art. 19 (1) and the "liberty" guaranteed by Art.
21 …

Thus, the schema proposed by the judge in the present case was Art 21 admits of
the liberties not already covered by Art 19. Further, if it is covered by Art 19, it would
not fall under Art 21. Article 19(d) was already constructed to be in a narrow physical
sense of locomotion. Art 21 had to admit of all other forms. The court noted:

The right to move about being excluded its narrowest interpretation would be that it
comprehends, nothing more than freedom from physical restraint or freedom from
confinement within the bounds of a prison; in other words, freedom from arrest and
detention, from false imprisonment or wrongful confinement. We feel unable to hold
that the term was intended to bear only this narrow interpretation but on the other
hand consider that "personal liberty" is used in the Article as a compendious term to
include within itself all the varieties of rights which go to make up the "personal
liberties" of man other than those dealt with in the several clauses of Art. 19 (1). In
other words, while Art.19 (l) deals with particular species or attributes of that
freedom, "personal liberty" in Art. 21 takes in and comprises the residue.

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The court continued:

Is then the word 'personal liberty' to be construed as excluding from its purview an
invasion on the 'part of the police of the sanctity of a man's home and an intrusion into
his personal security and his right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal?

The answer to this was certainly yes. Midnight knock attracted article 21. As the
regulation was not based on any law, the court declared it to be unconstitutional.
However, merely keeping a watch was a different thing all together. The court noted:

Having given the matter our best consideration we are clearly of the opinion that the
freedom guaranteed by Art. 19(1) (d) is not infringed by a watch being kept over the
movements of the suspect. Nor do we consider that Art. 21 has any relevance in the
context as was sought to be suggested by learned counsel for the petitioner. As
already pointed out, the right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the movements of an individual
which is merely a manner in which privacy is invaded is not an infringement of
fundamental right guaranteed by part III.

Two of the judges took dissenting position. Justice Subba Rao gave the dissenting
view. Subba Rao maintained that even the surveillance on Kharak Singh was
unconstitutional. Referring to Article 19 and 21, he noted:

Both of them are distinct fundamental rights. No doubt the expression "personal
liberty" is a comprehensive one and the right to move freely is an attribute of personal
liberty. It is said that the freedom to move freely is carved out of personal liberty and,
therefore, the expression "personal liberty" in Art. 21 excludes that attribute. In our
view, this is not a correct approach. Both are independent fundamental rights, though
there is overlapping. There is no question of one being carved out of another. The
fundamental right of life and personal liberty have many attributes and some of them
are found in Art. 19. If a person's fundamental right under Art. 21 is infringed the
State can rely upon a law to sustain the action; but that cannot be a complete answer
unless the said law satisfies the test laid down in Art. 19 (2) so far as the attributes
covered by Art. 19 (1) are concerned. In other words, the State must satisfy that both
the fundamental rights are not infringed by showing that there is a law and that it does
amount to a reasonable restriction within the meaning of Art. 19 (2) of the
Constitution.

As there was no law to support the regulation, allowing the police to do surveillance,
Kharak Singh, the judges reason ‘can legitimately plead that his fundamental rights
both under Art. 19 (1) (d) and Art. 21 are infringed by the State.’ Justice Rao
explored the scope of Article 21:

Now let us consider the scope of Art. 21. The expression "life" used in that Article
cannot be confined only to the taking away of life; i.e., causing death. … The
expression "liberty" is given a very wide meaning in America. It takes in all the
freedoms. …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.

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Referring to the US Supreme Court judgements, the court noted:

In an uncivilized society where there are no inhibitions, only physical restraints may
detract from personal liberty, but as civilization advances the psychological restraints
are more effective than physical ones. The scientific methods used to condition a
man's mind are in a real sense physical restraints, for they engender physical fear
channelling one's actions through anticipated and expected grooves. So also creation
of conditions which necessarily engender inhibitions and fear complexes can be
described as physical restraints. Further the right to personal liberty takes in not only a
right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but the said right is an essential
ingredient of personal liberty. 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, Frankfurter J., in (1948) 338 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. Art. 21 as a right of an
individual to be free from restrictions or encroachments on his person, whether those
restrictions to encroachments are directly imposed or indirectly brought about by
calculated measures. If so understood, all the acts of surveillance under Regulation
236 infringe the fundamental right of the petitioner under Art. 21 of the Constitution.

The views of Justice Subba Rao being minority view, was not binding. It was only a
view. We next take the Cooper Case.

The Cooper Case

The Cooper case is relevant as to how to read the fundamental rights. The Supreme
Court, by a eleven judge bench, discarded the Gopalan theory that the fundamental
rights were water tight compartments. The court noted:

... it is necessary to bear in mind the enunciation of the guarantee of fundamental

rights which has taken different forms. In some cases it is an express declaration of
a guaranteed right. In others to ensure protection of individual rights they take
specific forms of restrictions on State action-legislative or executive-Articles …
The enunciation of rights either express or by implication does not follow a uniform
pattern. But one thread runs through them: they seek to protect the rights of the
individual or groups of individuals against infringement of those rights within
specific limits. Part III of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection of those rights
in their allotted fields: they do not attempt to enunciate distinct rights.

The Maneka Gandhi Case

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In the Maneka Gandhi Case, the government had impounded the passport of
Maneka Gandhi. The case was a constitutional challenge to the provisions of the
Passport Act. The judgement broke several new grounds. One of them was it
revisted the Gopalan Doctrine. It tied the Cooper judgement with the dissenting
judgement of Subba Rao in Kharak Singh in reading the chapter on the
fundamental rights. Justice Bhagwati noted:

The first question that arises for consideration on the language of Art. 21 is: what is
the meaning and content of the words 'personal liberty' as used in this Article? This
question incidentally came up for discussion in some of the judgments in A. K.
Gopalan v. State of Madras, 1950 SCR 88: (AIR 1950 SC 27) and the observations
made by Patanjali Sastri, J., Mukherjee, J. and S. R. Das, J. seemed to place a narrow
interpretation on the words 'personal liberty' so as to confine the protection of Art. 21
to freedom of the person against unlawful detention. But there was no definite
pronouncement made on this point since the question before the Court was not so
much the interpretation of the words 'personal liberty' as the inter-relation between
Arts. 19 and 21. It was in Kharak Singh v. State of U. P., (1964) 1 SCR 332: (AIR
1963 SC 1295) that the question as to the proper scope and meaning of the expression
'personal liberty' came up pointedly for consideration for the first time before this
Court. The majority of the Judges took the view "that 'personal liberty, is used in the
article as a compendious term to include within itself all the varieties of rights which
go to make up the 'personal liberties' of man other than those dealt with in the several
clauses of Art. 19 (1). In other words, while Art. 19 (1) deals with particular species
or attributes of that freedom, 'personal liberty' in Art. 21 takes in and comprises the
residue". The minority Judges, however, disagreed with this view taken by the
majority and explained their position in the following words:

"No doubt the expression 'personal liberty' is a comprehensive one and the
right to move freely is an attribute of personal liberty. It is said that the
freedom to move freely is carved out of personal liberty and, therefore, the
expression 'personal liberty' in Art. 21 excludes that attribute. In our view, this
is not a correct approach. Both are independent fundamental rights, though
there is overlapping. There is no question of one being carved out of another.
The fundamental right of life and personal liberty has many attributes and
some of them are found in Art. 19. If a person's fundamental right under Art.
21 is infringed, the State can rely upon a law to sustain the action, but that
cannot be a complete answer unless the said law satisfies the test laid down in
Art. 19 (2) so far as the attributes covered by Art. 19 (1) are concerned."

There can be no doubt that in view of the decision of this Court in R. C. Cooper v.
Union of India, (1970) 3 SCR 530: (AIR 1970 SC 564) the minority view must be
regarded as correct and the majority view must be held to have been overruled. We
shall have occasion to analyse and discuss the decision in R. C. Copper's case a little
later when we deal with the arguments based on infraction of Articles 19 (1) (a) and
19 (1) (g), but it is sufficient to state for the present that according to this decision,
which was a decision given by the full Court, the fundamental rights conferred by Part
III are not distinct and mutually exclusive rights. Each freedom has different
dimensions and merely because the limits of interference with one freedom are
satisfied, the law is not freed from the necessity to meet the challenge of another

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 guaranteed freedom. The decision in A. K. Gopalan's case gave rise to the theory that
the freedoms under Arts. 19, 21, 22 and 31 are exclusive - each article enacting a code
relating to the protection of distinct rights, but this theory was overturned in R. C.
Cooper's case where Shah, J., speaking on behalf of the majority pointed out that "Part
III of the Constitution weaves a pattern of guarantees on the texture of basic human
rights. The guarantees delimit the protection of those rights in their allotted fields:
they do not attempt to enunciate distinct rights". The conclusion was summarised in
these terms: "In our judgment, the assumption in A. K. Gopalan's case that certain
articles in the Constitution exclusively deal with specific matters - cannot be accepted
as correct." It was held in R. C. Cooper's case and that is clear from the judgment of
Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of
law contained in the opinions of Kania, C.J., Patanjal Sastri, J., Mahajan, J.
Mukherjee J. and S. R. Das, J. in A. K. Gopalan's case - that even where a person is
detained in accordance with the procedure prescribed by law, as mandated by Art. 21,
the protection conferred by the various clauses of Art. 19 (1) does not cease to be
available to him and the law authorising such detention has to satisfy the test of the
applicable freedoms under Art. 19, clause (1). This would clearly show that Articles
19 (1) and 21 are not mutually exclusive, for, if they were, there would be no question
of a law depriving a person of personal liberty within the meaning of Article 21
having to meet the challenge of a fundamental right under Art. 19 (1). Indeed, in that
event, a law of preventive detention which deprives a person of 'personal liberty' in
the narrowest sense, namely, freedom from detention and thus falls indisputably
within Art. 21 would not require to be tested on the touchstone of clause (d) of Art. 19
(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath
Sarkar v. The State of West Bengal (AIR 1973 SC 1425) that such a law would have
to satisfy the requirement inter alia of Article 19 (1), clause (d) and in Haradhan Saha
v. The State of West Bengal (AIR 1974 SC 2154) which was a decision given by a
Bench of five judges, this Court considered the challenge of clause (d) of Article 19
(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and
held that the Act did not violate the constitutional guarantee embodied in that Article.
It is indeed difficult to see on what principle we can refuse to give its plain natural
meaning to the expression 'personal liberty' as used in Article 21 and read it in a
narrow and restricted sense so as to exclude those attributes of personal liberty which
are specifically dealt with in Article 19. We do not think that this would be a correct
way of interpreting the provisions of the Constitution conferring fundamental rights.
The attempt of the court should be to expand the reach and ambit of the fundamental
rights rather than attenuate their meaning and content by a process of judicial
construction. The wave length for comprehending the scope and ambit of the
fundamental rights has been set by this Court in R. C. Cooper's case and our approach
in the interpretation of the fundamental rights must now be in tune with this wave
length.

The Present Case

Coming to the present case, drawing from these, Justice Chandrachud noted:

Following the decision in Maneka, the established constitutional doctrine is that the
expression 'personal liberty' in Article 21 covers a variety of rights, some of which
'have been raised to the status of distinct fundamental rights' and given additional
protection under Article 19. … The decision in Maneka carried the constitutional

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 principle of the over-lapping nature of fundamental rights to its logical conclusion.
Reasonableness which is the foundation of the guarantee against arbitrary state
action under Article 14 infuses Article 21. A law which provides for a deprivation
of life or personal liberty under Article 21 must lay down not just any procedure but
a procedure which is fair, just and reasonable.

Justice Chandrachud further noted:

The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the
relationship between Articles 19 and 21, based on the view of the majority in
Gopalan. This view stands abrogated particularly by the judgment in Cooper and
the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact,
expressly recognized that it is the dissenting judgment of Justice Subba Rao in
Kharak Singh which represents the exposition of the correct constitutional
principle. The jurisprudential foundation which held the field sixty three years ago
in M P Sharma and fifty five years ago in Kharak Singh has given way to what is
now a settled position in constitutional law. Firstly, the fundamental rights emanate
from basic notions of liberty and dignity and the enumeration of some facets of
liberty as distinctly protected rights under Article 19 does not denude Article 21 of
its expansive ambit. Secondly, the validity of a law which infringes the fundamental
rights has to be tested not with reference to the object of state action but on the
basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article
14 that state action must not be arbitrary and must fulfil the requirement of
reasonableness, imparts meaning to the constitutional guarantees in Part III.

Justice Chandrachud noted the basic premise of Sharma and Kharak Singh, that
the articles of the constitution in the fundamental rights should be read as
independent silos, was invalidated. But it still left the question ‘whether privacy is a
right protected by Part III of the Constitution open for consideration.’ In fact, Justice
Chandrachud noted that there were ‘observations in both decisions that the
Constitution does not contain a specific protection of the right to privacy.’ The
judge analysed both the cases on the aspect of the right to privacy.

On M P Sharma, Justice Chandrachud noted:

M P Sharma was a case where a law prescribing a search to obtain documents for
investigating into offences was challenged as being contrary to the guarantee
against self-incrimination in Article 20(3). The Court repelled the argument that a
search for documents compelled a person accused of an offence to be witness
against himself. Unlike a notice to produce documents, which is addressed to a
person and whose compliance would constitute a testimonial act, a search warrant
and a seizure which follows are not testimonial acts of a person to whom the
warrant is addressed, within the meaning of Article 20(3). The Court having held
this, the controversy in M P Sharma would rest at that. The observations in M P
Sharma to the effect that the constitution makers had not thought it fit to subject the
regulatory power of search and seizure to constitutional limitations by recognising a
fundamental right of privacy (like the US Fourth amendment), and that there was
no justification to impart it into a 'totally different fundamental right' are at the
highest, stray observations.

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 The decision in M P Sharma held that in the absence of a provision like the Fourth
Amendment to the US Constitution, a right to privacy cannot be read into the Indian
Constitution. The decision in M P Sharma did not decide whether a constitutional
right to privacy is protected by other provisions contained in the fundamental rights
including among them, the right to life and personal liberty under Article 21. Hence
the decision cannot be construed to specifically exclude the protection of privacy
under the framework of protected guarantees including those in Articles 19 or 21.
The absence of an express constitutional guarantee of privacy still begs the question
whether privacy is an element of liberty and, as an integral part of human dignity, is
comprehended within the protection of life as well.

Justice Bobde noted:

M.P. Sharma is unconvincing not only because it arrived at its conclusion without
enquiry into whether a privacy right could exist in our Constitution on an
independent footing or not, but because it more than a limited protection against
unlawful surveillance - to be a comprehensive constitutional guarantee of privacy in
that jurisdiction.

Justice Chandrachud noted on the Kharak Singh Case:

The decision in Kharak Singh is noteworthy because while invalidating Regulation

236(b) of the Police Regulations which provided for nightly domiciliary visits, the
majority construed this to be an unauthorized intrusion into a person's home and a
violation of ordered liberty. While arriving at this conclusion, the majority placed
reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking for the
US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the majority
judgment specifically adverts to 'privacy' twice). Having relied on this doctrine to
invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the
challenge to other clauses of Regulation 236 on the ground that the right of privacy
is not guaranteed under the Constitution and hence Article 21 had no application.
This part of the judgment in Kharak Singh is inconsistent with the earlier part of the
decision. The decision of the majority in Kharak Singh suffers from an internal
inconsistency.

Justice Nariman noted:

If the passage in the judgment dealing with domiciliary visits at night and striking it
down is contrasted with the later passage upholding the other clauses of Regulation
236 extracted above, it becomes clear that it cannot be said with any degree of
clarity that the majority judgment upholds the right to privacy as being contained in
the fundamental rights chapter or otherwise. As the majority judgment contradicts
itself on this vital aspect, it would be correct to say that it cannot be given much
value as a binding precedent. In any case, we are of the view that the majority
judgment is good law when it speaks of Article 21 being designed to assure the
dignity of the individual as a most cherished human value which ensures the means
of full development and evolution of a human being. The majority judgment is also
correct in pointing out that Article 21 interdicts unauthorized intrusion into a
person's home. Where the majority judgment goes wrong is in holding that
fundamental rights are in watertight compartments and in holding that the right of

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privacy is not a guaranteed right under our Constitution. It can be seen, therefore,
that the majority judgment is like the proverbial curate's egg - good only in parts.
Strangely enough when the good parts alone are seen, there is no real difference
between Subba Rao, J.'s approach in the dissenting judgment and the majority
judgment. This then answers the major part of the reference to this 9-Judge Bench
in that we hereby declare that neither the 8-Judge nor the 6-Judge Bench can be
read to come in the way of reading the fundamental right to privacy into Part III of
the Constitution.

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 Part 2: The Right to Privacy Case: Human Dignity in Indian Constitution

The Indian constitution does not use the term privacy nor human dignity. In the
Privacy Case, Justice Chandrachud recognised that the constitution, as the court
had interpreted it, invested with dignity. Article 19 is on freedoms, article 14 equality
and article 21, right to life. The scope of each of the articles has expanded over the
decades, providing a protective cover to human dignity. In this part, we will explore
the part on human dignity in the judgement of Justice Chandrachud in the Privacy
Case. Justice Chandrachud noted:

Over the last four decades, our constitutional jurisprudence has recognised the
inseparable relationship between protection of life and liberty with dignity. Dignity as
a constitutional value finds expression in the Preamble. The constitutional vision
seeks the realisation of justice (social, economic and political); liberty (of thought,
expression, belief, faith and worship); equality (as a guarantee against arbitrary
treatment of individuals) and fraternity (which assures a life of dignity to every
individual). These constitutional precepts exist in unity to facilitate a humane and
compassionate society. The individual is the focal point of the Constitution because it
is in the realisation of individual rights that the collective well being of the
community is determined. Human dignity is an integral part of the Constitution.
Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the
lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).

Human Dignity

In support for the above assertion, Justice Chandrachud drew from several
judgements. We select some of the important quotes. In Prem Shankar Shukla v.
Delhi Administration84, the issue was on handcuffing of the prisoners. Justice Krishna
Iyer held:

...the guarantee of human dignity, which forms part of our constitutional culture, and
the positive provisions of Articles 14, 19 and 21 spring into action when we realise
that to manacle man is more than to mortify him; it is to dehumanize him and,
therefore, to violate his very personhood, too often using the mask of 'dangerousness'
and security… The Preamble sets the humane tone and temper of the Founding
Document and highlights Justice, Equality and the dignity of the individual.

In Francis Coralie Mullin v. Union Territory of Delhi 85, the rights of a person under
detention to have an interview with a lawyer and the members of his family was in
question. The court noted:

The fundamental right to life which is the most precious human right and which forms
the ark of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come
and enhance the dignity of the individual and the worth of the human person...the

84
Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.
85
Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746.
153
 right to life enshrined in Article 21 cannot be restricted to mere animal existence. It
means something much more than just physical survival.

...We think that the right to life includes the right to live with human dignity and all
that goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing one-self in
diverse forms, freely moving about and mixing and commingling with fellow human
beings... Every act which offends against or impairs human dignity would constitute
deprivation pro tanto of this right to live and it would have to be in accordance with
reasonable, fair and just procedure established by law which stands the test of other
fundamental rights...

In Bandhua Mukti Morcha v. Union of India, 86 the court was dealing with the rights of
people living in the conditions of bondage. The court noted:

This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly Clauses (e) and (f) of
"Article 39 and Arts. 41 and 42 and at the least, therefore, it must include protection
of the health and strength of the workers, men and women, and of the tender age of
children against abuse, opportunities and facilities for children to develop in a healthy
manner and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity, and nor State
- neither the Central Government - has the right to take any action which will deprive
a person of the enjoyment of these basic essentials.

In M. Nagaraj v. Union of India87, the court noted:

The rights, liberties and freedoms of the individual are not only to be protected
against the State, they should be facilitated by it... It is the duty of the State not only to
protect the human dignity but to facilitate it by taking positive steps in that direction.
No exact definition of human dignity exists. It refers to the intrinsic value of every
human being, which is to be respected. It cannot be taken away. It cannot give. It
simply is. Every human being has dignity by virtue of his existence ...

India is constituted into a sovereign, democratic, republic to secure to all its citizens,
fraternity assuring the dignity of the individual and the unity of the nation. The
sovereign, democratic, republic exists to promote fraternity and the dignity of the
individual citizen and to secure to the citizens certain rights. This is because the
objectives of the State can be realized only in and through the individuals. Therefore,
rights conferred on citizens and non-citizens are not merely individual or personal
rights. They have a large social and political content, because the objectives of the
Constitution cannot be otherwise realized.

In Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, 88 the

court held that a forcible intrusion into a person's mental processes’ was ‘an affront
86
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
87
M. Nagaraj v. Union of India, AIR 2002 SC 71.
88
Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, AIR 2010 SC
1325.
154
to human dignity and liberty, often with grave and long-lasting consequences.’ In
Jeeja Ghosh v. Union of India,89 the court observed:

...human dignity is a constitutional value and a constitutional goal. What are the
dimensions of constitutional value of human dignity? It is beautifully illustrated by
Aharon Barak90(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.

Assimilating the above judgements, Justice Chandrachud noted:

Life is precious in itself. But life is worth living because of the freedoms which enable
each individual to live life as it should be lived. The best decisions on how life should
be lived are entrusted to the individual. They are continuously shaped by the social
milieu in which individuals exist. The duty of the State is to safeguard the ability to
take decisions - the autonomy of the individual - and not to dictate those decisions.
'Life' within the meaning of Article 21 is not confined to the integrity of the physical
body. The right comprehends one's being in its fullest sense. That which facilitates the
fulfillment of life is as much within the protection of the guarantee of life.

To live is to live with dignity. The draftsmen of the Constitution defined their vision
of the society in which constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is dignity that it permeates
the core of the rights guaranteed to the individual by Part III. Dignity is the core
which unites the fundamental rights because the fundamental rights seek to achieve
for each individual the dignity of existence. Privacy with its attendant values assures
dignity to the individual and it is only when life can be enjoyed with dignity can
liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core
value which the protection of life and liberty is intended to achieve.

Natural Rights

Justice Chandrachud reviewed judgements which had taken the fundamental rights
as natural rights. In the Golak Nath case,91 Chief Justice Subba Rao noted that the
Fundamental Rights preserved ‘the natural rights against the State encroachment’.
He observed:

89
Jeeja Ghosh v. Union of India, AIR 2016 SC 2393.
90
Aharon Barak, Human Dignity- The Constitutional Value and the Constitutional Right,
Cambridge University Press (2015).
91
Golak Nath v. State of Punjab, AIR 967 SC 1643.
155
 "Fundamental Rights" are the modern name for what have been traditionally known
as "natural rights". As one author puts: "they are moral rights which every human
being everywhere all times ought to have simply because of the fact that in
contradistinction with other things is rational and moral". They are the primordial
rights necessary for the development of human personality. They are the rights which
enable a man to chalk out of his own life in the manner he likes best...

With reference to this, in the present case, Justice Chandrachud noted:

The fundamental rights, in other words, are primordial rights which have traditionally
been regarded as natural rights. In that character these rights are inseparable from
human existence. They have been preserved by the Constitution, this being a
recognition of their existence even prior to the constitutional document.

In Kesavananda Bharati Case92, the court reviewed the earlier judgements and held
that the court had described the fundamental rights as 'natural rights' or 'human
rights'. Justice Mathew noted:

The social nature of man, the generic traits of his physical and mental constitution, his
sentiments of justice and the morals within, his instinct for individual and collective
preservations, his desire for happiness, his sense of human dignity, his consciousness
of man's station and purpose in life, all these are not products of fancy but objective
factors in the realm of existence...

 Privacy intrinsic to freedom and liberty 

The government argued that privacy was not a part of the constitution. This is, right
to privacy could not be derived from the fundamental rights. The government argued
that right to privacy could become a fundamental right only by a constitutional
amendment. The implication of this would be the state would be free to make any
law taking away privacy of the individuals. Justice Chandrachud found this to be an
error. He noted:

The right to privacy is an element of human dignity. The sanctity of privacy lies in its
functional relationship with dignity. Privacy ensures that a human being can lead a
life of dignity by securing the inner recesses of the human personality from unwanted
intrusion. Privacy recognises the autonomy of the individual and the right of every
person to make essential choices which affect the course of life. In doing so privacy
recognises that living a life of dignity is essential for a human being to fulfil the
liberties and freedoms which are the cornerstone of the Constitution. To recognise the
value of privacy as a constitutional entitlement and interest is not to fashion a new
fundamental right by a process of amendment through judicial fiat. Neither are the
Judges nor is the process of judicial review entrusted with the constitutional
responsibility to amend the Constitution. But judicial review certainly has the task
before it of determining the nature and extent of the freedoms available to each person
under the fabric of those constitutional guarantees which are protected. Courts have
traditionally discharged that function and in the context of Article 21 itself, as we

92
Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
156
 have already noted, a panoply of protections governing different facets of a dignified
existence has been held to fall within the protection of Article 21.

Justice Chandrachud noted that in Olga Tellis v Bombay Municipal Corporation 93, the
court while explaining the ambit of Article 21 found a rationale for protecting the right
to livelihood as an incident of the right to life. The court noted:

The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does
not mean merely that life cannot be extinguished or taken away as, for example, by
the imposition and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An equally important
facet of that right is the right to livelihood because, no person can live without the
means of living, that is, the means of livelihood. If the right to livelihood is not treated
as a part of the constitutional right to life, the easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood to the point of
abrogation. Such deprivation would not only denude the life of its effective content
and meaningfulness but it would make life impossible to live. And yet, such
deprivation would not have to be in accordance with the procedure established by law,
if the right to livelihood is not regarded as a part of the right to life. That, which alone
makes it possible to live, leave aside what makes life liveable, must be deemed to be
an integral component of the right to life. Deprive a person of his right to livelihood
and you shall have deprived him of his life...

Justice Chandrachud noted that in Unnikrishnan v. State of Andhra Pradesh 94 the

court held the right to education was not "stated expressly as a fundamental right" in
Part III, that would not militate against its being protected under the rubric of life
under Article 21.’ Justice Chandrachud noted:

… these decisions have been ultimately guided by the object of a Constitutional

Court which must be to expand the boundaries of fundamental human freedoms rather
than to attenuate their content through a constricted judicial interpretation In Maneka,
it has been stated that:

The attempt of the court should be to expand the reach and ambit of the
fundamental rights rather than attenuate their meaning and content by process
of judicial construction..."personal liberty" in Article 21 is of the widest
amplitude.

Justice Chandrachud noted on interpreting the fundamental rights:

Now, would this Court in interpreting the Constitution freeze the content of
constitutional guarantees and provisions to what the founding fathers perceived? The
Constitution was drafted and adopted in a historical context. The vision of the
founding fathers was enriched by the histories of suffering of those who suffered
oppression and a violation of dignity both here and elsewhere. Yet, it would be
difficult to dispute that many of the problems which contemporary societies face
would not have been present to the minds of the most perspicacious draftsmen. No

93
Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 18.
94
Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.
157
generation, including the present, can have a monopoly over solutions or the
confidence in its ability to foresee the future. As society evolves, so must
constitutional doctrine. The institutions which the Constitution has created must adapt
flexibly to meet the challenges in a rapidly growing knowledge economy. Above all,
constitutional interpretation is but a process in achieving justice, liberty and dignity to
every citizen.

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 Part 3: The Right to Privacy Case: Aspects of Privacy

Privacy has several aspects. In the Right to Privacy case, the court extensively
explored different aspects of privacy. In this note, we will explore review of privacy in
the judgement of Justice Chandrachud. Justice Chandrachud drew on privacy from
different authors:

(i) Alan Westin defined four basic states of privacy which reflect on the nature and
extent of the involvement of the individual in the public sphere. At the core is solitude
- the most complete state of privacy involving the individual in an "inner dialogue
with the mind and conscience". The second state is the state of intimacy which refers
not merely to intimate relations between spouses or partners but also between family,
friends and colleagues. The third state is of anonymity where an individual seeks
freedom from identification despite being in a public space. The fourth state is
described as a state of reservation which is expressed as "the need to hold some
aspects of ourselves back from others, either as too personal and sacred or as too
shameful and profane to express".

(ii) Roger Clarke has developed a classification of privacy on Maslow's pyramid of

values. The values described in Maslow's pyramid are: self-actualization, self-esteem,
love or belonging, safety and physiological or biological need. Clarke's categories
include (a) privacy of the person also known as bodily privacy. Bodily privacy is
violated by compulsory extraction of samples of body fluids and body tissue and
compulsory sterilization; (b) privacy of personal behaviour which is part of a private
space including the home; (c) Privacy of personal communications which is expressed
as the freedom of communication without interception or routine monitoring of one's
communication by others; (d) Privacy of personal data which is linked to the concept
of informational privacy.

(iii) Anita Allen has, in a 2011 publication, developed the concept of "unpopular
privacy". According to her, Governments must design "unpopular" privacy laws and
duties to protect the common good, even if privacy is being forced on individuals who
may not want it. Individuals under this approach are not permitted to waive their
privacy rights. Among the component elements which she notices are : (a) physical or
spatial privacy - illustrated by the privacy in the home; (b) informational privacy
including information data or facts about persons or their communications; (c)
decisional privacy which protects the right of citizens to make intimate choices about
their rights from intrusion by the State; (d) proprietary privacy which relates to the
protection of one's reputation; (e) associational privacy which protects the right of
groups with certain defined characteristics to determine whom they may include or
exclude.

Privacy has distinct connotations including (i) spatial control; (ii) decisional
autonomy; and (iii) informational control. Spatial control denotes the creation of
private spaces. Decisional autonomy comprehends intimate personal choices such as
those governing reproduction as well as choices expressed in public such as faith or
modes of dress. Informational control empowers the individual to use privacy as a
shield to retain personal control over information pertaining to the person. With
regard to informational privacy, it has been stated that:

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 "...perhaps the most convincing conception is proposed by Helen Nissenbaum
who argues that privacy is the expectation that information about a person will
be treated appropriately. This theory of "contextual integrity" believes people
do not want to control their information or become inaccessible as much as
they want their information to be treated in accordance with their expectation
(Nissenbaum 2004, 2010, 2011)."

Integrated together, the fundamental notions of privacy have been depicted in a

seminal article published in 2017 titled "A Typology of privacy" in the University of
Pennsylvania Journal of International Law. The article contains an excellent visual
depiction of privacy, which is presented in the following format:

The above diagrammatical representation presents two primary axes: a horizontal axis
consisting of four zones of privacy and a vertical axis which emphasises two aspects
of freedom: the freedom to be let alone and the freedom for self-development. The
nine primary types of privacy are, according to the above depiction: (i) bodily privacy
which reflects the privacy of the physical body. Implicit in this is the negative
freedom of being able to prevent others from violating one's body or from restraining
the freedom of bodily movement; (ii) spatial privacy which is reflected in the privacy
of a private space through which access of others can be restricted to the space;
intimate relations and family life are an apt illustration of spatial privacy; (iii)
communicational privacy which is reflected in enabling an individual to restrict
access to communications or control the use of information which is communicated to
third parties; (iv) proprietary privacy which is reflected by the interest of a person in
utilising property as a means to shield facts, things or information from others; (v)
intellectual privacy which is reflected as an individual interest in the privacy of
thought and mind and the development of opinions and beliefs; (vi) decisional privacy

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 reflected by an ability to make intimate decisions primarily consisting one's sexual or
procreative nature and decisions in respect of intimate relations; (vii) associational
privacy which is reflected in the ability of the individual to choose who she wishes to
interact with; (viii) behavioural privacy which recognises the privacy interests of a
person even while conducting publicly visible activities. Behavioural privacy
postulates that even when access is granted to others, the individual is entitled to
control the extent of access and preserve to herself a measure of freedom from
unwanted intrusion; and (ix) informational privacy which reflects an interest in
preventing information about the self from being disseminated and controlling the
extent of access to information.

 Constituent Assembly and privacy

Justice Chandrachud reviewed the Constituent Assembly debates and found that it
did not expressly reject the right to privacy as an integral element of the liberty and
freedoms guaranteed by the fundamental rights. Continuing, Justice Chandrachud
noted:

The Constitution has evolved over time, as judicial interpretation, led to the
recognition of specific interests and entitlements. These have been subsumed within
the freedoms and liberties guaranteed by the Constitution. Article 21 has been
interpreted by this Court to mean that life does not mean merely a physical existence.
It includes all those faculties by which life is enjoyed. The ambit of 'the procedure
established by law' has been interpreted to mean that the procedure must be fair, just
and reasonable. The coalescence of Articles 14, 19 and 21 has brought into being a
jurisprudence which recognises the inter-relationship between rights. That is how the
requirements of fairness and non-discrimination animate both the substantive and
procedural aspects of Article 21. These constitutional developments have taken place
as the words of the Constitution have been interpreted to deal with new exigencies
requiring an expansive reading of liberties and freedoms to preserve human rights
under the rule of law. India's brush with a regime of the 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. The interpretation of the Constitution cannot be
frozen by its original understanding. The Constitution has evolved and must
continuously evolve to meet the aspirations and challenges of the present and the
future. Nor can Judges foresee every challenge and contingency which may arise in
the future. This is particularly of relevance in an age where technology reshapes our
fundamental understanding of information, knowledge and human relationships that
was unknown even in the recent past. Hence, as Judges interpreting the Constitution
today, the Court must leave open the path for succeeding generations to meet the
challenges to privacy that may be unknown today.

The impact of the decision in Cooper is to establish a link between the fundamental
rights guaranteed by Part III of the Constitution. The immediate consequence of the
decision is that a law which restricts the personal liberties contained in Article 19
must meet the test of permissible restrictions contemplated by Clauses 2 to 6 in
relation to the fundamental freedom which is infringed. Moreover, since the
fundamental rights are inter-related, Article 21 is no longer to be construed as a
residue of rights which are not specifically enumerated in Article 19. Both sets of
rights overlap and hence a law which affects one of the personal freedoms under

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Article 19 would, in addition to the requirement of meeting the permissible
restrictions contemplated in clauses 2 to 6, have to meet the parameters of a valid
'procedure established by law' under Article 21 where it impacts on life or personal
liberty. The law would be assessed not with reference to its object but on the basis of
its effect and impact on the fundamental rights. Coupled with the breakdown of the
theory that the fundamental rights are water-tight compartments, the post Maneka
jurisprudence infused the test of fairness and reasonableness in determining whether
the 'procedure established by law' passes muster under Article 21. At a substantive
level, the constitutional values underlying each article in the Chapter on fundamental
rights animate the meaning of the others. This development of the law has followed a
natural evolution. The basis of this development after all is that every aspect of the
diverse guarantees of fundamental rights deals with human beings. Every element
together with others contributes in the composition of the human personality. In the
very nature of things, no element can be read in a manner disjunctive from the
composite whole. The close relationship between each of the fundamental rights has
led to the recognition of constitutional entitlements and interests. Some of them may
straddle more than one, and on occasion several, fundamental rights. Yet others may
reflect the core value upon which the fundamental rights are founded. Even at the
birth of the Constitution, the founding fathers recognised in the Constituent Assembly
that, for instance, the freedom of speech and expression would comprehend the
freedom of the press. Hence, the guarantee of free speech and expression has been
interpreted to extend to the freedom of the press. Recognition of the freedom of the
press does not create by judicial fiat, a new fundamental right but is an
acknowledgment of that, which lies embedded and without which the guarantee of
free speech and expression would not be complete. Similarly, Article 21 has been
interpreted to include a spectrum of entitlements such as a right to a clean
environment, the right to public health, the right to know, the right to means of
communication and the right to education, besides a panoply of rights in the context
of criminal law and procedure in matters such as handcuffing and speedy trial. The
rights which have been held to flow out of Article 21 include the following:

(i) The right to go abroad - Satwant Singh Sawhney v. D. Ramarathnam APO New
Delhi328, AIR 1967 SC 1836.

(ii) The right against solitary confinement - Sunil Batra v. Delhi Administration, AIR
1978 SC 1675.

(iii) The right of prisoners against bar fetters - Charles Sobraj v. Supdt. Central Jail,
AIR 1978 SC 1514.

(iv) The right to legal aid - M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

(v) The right to speedy trial - Hussainara Khatoon v. Home Secretary, State of Bihar,
AIR 1979 SC 1360.

(vi) The right against handcuffing - Prem Shankar Shukla v. Delhi Administration,
AIR 1980 SC 1535.

(vii) The right against custodial violence - Sheela Barse v. State of Maharashtra, AIR
1983 SC 378.

162
 (viii) The right against public hanging - A. G. of India v. Lachma Devi, AIR 1986 SC
467.

(ix) Right to doctor's assistance at Government hospitals - Paramanand Katara v.

Union of India, AIR 1989 SC 2039.

(x) Right to shelter - Shantistar Builders v. N. K. Totame, AIR 1990 SC 630.

(xi) Right to a healthy environment - Virender Gaur v. State of Haryana, 1995 AIR
SCW 306.

(xii) Right to compensation for unlawful arrest - Rudal Sah v. State of Bihar, AIR
1983 SC 1086.

(xiii) Right to freedom from torture - Sunil Batra v. Delhi Administration, AIR 1978
SC 1675.

(xiv) Right to reputation - Umesh Kumar v. State of Andhra Pradesh, AIR 2014 SC
1106.

(xv) Right to earn a livelihood - Olga Tellis v. Bombay Municipal Corporation, AIR
1986 SC 180.

Neither is this an exercise in constitutional amendment brought about by judicial decision nor
does it result in the creation of a new set of fundamental rights. The exercise has been one of
interpreting existing rights guaranteed by the Constitution and while understanding the core
of those rights, to define the ambit of what the right comprehends.

The draftsmen of the Constitution had a sense of history both global and domestic as they
attempted to translate their vision of freedom into guarantees against authoritarian behaviour.
The Constitution adopted a democratic form of Government based on the rule of law. The
framers were conscious of the widespread abuse of human rights by authoritarian regimes in
the two World Wars separated over a period of two decades. The framers were equally
conscious of the injustice suffered under a colonial regime and more recently of the horrors
of partition. The backdrop of human suffering furnished a reason to preserve a regime of
governance based on the rule of law which would be subject to democratic accountability
against a violation of fundamental freedoms. The content of the fundamental rights evolved
over the course of our constitutional history and any discussion of the issues of privacy,
together with its relationship with liberty and dignity, would be incomplete without a brief
reference to the course of history as it unravels in precedent. By guaranteeing the freedoms
and liberties embodied in the fundamental rights, the Constitution has preserved natural rights
and ring-fenced them from attempts to attenuate their existence.

Technology, as we experience it today is far different from what it was in the lives of the
generation which drafted the Constitution. Information technology together with the internet
and the social media and all their attendant applications have rapidly altered the course of life
in the last decade. Today's technology renders models of application of a few years ago
obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well
as to the document which they sanctified to constrict its interpretation to an originalist

163
interpretation. Today's problems have to be adjudged by a vibrant application of
constitutional doctrine and cannot be frozen by a vision suited to a radically different society.
We describe the Constitution as a living instrument simply for the reason that while it is a
document which enunciates eternal values for Indian society, it possesses the resilience
necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability
to allow succeeding generations to apply the principles on which it has been founded to find
innovative solutions to intractable problems of their times. In doing so, we must equally
understand that our solutions must continuously undergo a process of re-engineering.

Essential nature of privacy 

Justice Chandrachud explored the scope of privacy. He noted:

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 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. Recognizing 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.

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 inter-twined, each being a facilitative tool to achieve the
other. The ability of the individual to protect a zone of privacy enables the realization
of the full value of life and liberty. Liberty has a broader meaning of which privacy is
a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only

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within a private space. Privacy enables the individual to retain the autonomy of the
body and mind. The autonomy of the individual is the ability to make decisions on
vital matters of concern to life. Privacy has not been couched as an independent
fundamental right. But that does not detract from the constitutional protection
afforded to it, once the true nature of privacy and its relationship with those
fundamental rights which are expressly protected is understood. Privacy lies across
the spectrum of protected freedoms. The guarantee of equality is a guarantee against
arbitrary State action. It prevents the State from discriminating between individuals.
The destruction by the State of a sanctified personal space whether of the body or of
the mind is violative of the guarantee against arbitrary State action. Privacy of the
body entitles an individual to the integrity of the physical aspects of personhood. The
inter-section between one's mental integrity and privacy entitles the individual to
freedom of thought, the freedom to believe in what is right, and the freedom of self-
determination. When these guarantees inter-sect with gender, they create a private
space which protects all those elements which are crucial to gender identity. The
family, marriage, procreation and sexual orientation are all integral to the dignity of
the individual. Above all, the privacy of the individual recognises an inviolable right
to determine how freedom shall be exercised. An individual may perceive that the
best form of expression is to remain silent. Silence postulates a realm of privacy. An
artist finds reflection of the soul in a creative endeavour. A writer expresses the
outcome of a process of thought. A musician contemplates upon notes which
musically lead to silence. The silence, which lies within, reflects on the ability to
choose how to convey thoughts and ideas or interact with others. These are crucial
aspects of personhood. The freedoms under Article 19 can be fulfilled where the
individual is entitled to decide upon his or her preferences. Read in conjunction with
Article 21, liberty enables the individual to have a choice of preferences on various
facets of life including what and how one will eat, the way one will dress, the faith
one will espouse and a myriad other matters on which autonomy and self-
determination require a choice to be made within the privacy of the mind. The
constitutional right to the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not express those choices to
the world. These are some illustrations of the manner in which privacy facilitates
freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared to be a fundamental right.
Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy:
this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both
reside within the inalienable values of life, liberty and freedom which the Constitution
has recognised. Privacy is the ultimate expression of the sanctity of the individual. It
is a constitutional value which straddles across the spectrum of fundamental rights
and protects for the individual a zone of choice and self-determination.

Privacy represents the core of the human personality and recognizes 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 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

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 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 desire 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.

Informational privacy

Justice Chandrachud turned to information and privacy. He noted:

Ours is an age of information. Information is knowledge. The old adage that

"knowledge is power" has stark implications for the position of the individual where
data is ubiquitous, an all-encompassing presence. Technology has made life
fundamentally interconnected. The internet has become all pervasive as individuals
spend more and more time online each day of their lives. Individuals connect with
others and use the internet as a means of communication. The internet is used to carry
on business and to buy goods and services. Individuals browse the web in search of
information, to send e-mails, use instant messaging services and to download movies.
Online purchases have become an efficient substitute for the daily visit to the
neighbouring store. Online banking has redefined relationships between bankers and
customers. Online trading has created a new platform for the market in securities.
Online music has refashioned the radio. Online books have opened up a new universe
for the bibliophile. The old-fashioned travel agent has been rendered redundant by
web portals which provide everything from restaurants to rest houses, airline tickets to
art galleries, museum tickets to music shows. These are but a few of the reasons
people access the internet each day of their lives. Yet every transaction of an
individual user and every site that she visits, leaves electronic tracks generally without
her knowledge. These electronic tracks contain powerful means of information which
provide knowledge of the sort of person that the user is and her interests. Individually,
these information silos may seem inconsequential. In aggregation, they disclose the
nature of the personality: food habits, language, health, hobbies, sexual preferences,
friendships, ways of dress and political affiliation. In aggregation, information
provides a picture of the being: of things which matter and those that don't, of things
to be disclosed and those best hidden.

Popular websites install cookie files by the user's browser. Cookies can tag browsers
for unique identified numbers, which allow them to recognise rapid users and secure

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information about online behaviour. Information, especially the browsing history of a
user is utilised to create user profiles. The use of algorithms allows the creation of
profiles about internet users. Automated content analysis of e-mails allows for reading
of user e-mails. An e-mail can be analysed to deduce user interests and to target
suitable advertisements to a user on the site of the window. The books which an
individual purchases on-line provide footprints for targeted advertising of the same
genre. Whether an airline ticket has been purchased on economy or business class,
provides vital information about employment profile or spending capacity. Taxi rides
booked on-line to shopping malls provide a profile of customer preferences. A woman
who purchases pregnancy related medicines on-line would be in line to receive
advertisements for baby products. Lives are open to electronic scrutiny. To put it
mildly, privacy concerns are seriously an issue in the age of information. …

The age of information has resulted in complex issues for informational privacy.
These issues arise from the nature of information itself. Information has three facets:
it is non-rivalrous, invisible and recombinant. Information is non-rivalrous in the
sense that there can be simultaneous users of the good - use of a piece of information
by one person does not make it less available to another. Secondly, invasions of data
privacy are difficult to detect because they can be invisible. Information can be
accessed, stored and disseminated without notice. Its ability to travel at the speed of
light enhances the invisibility of access to data, "information collection can be the
swiftest theft of all". Thirdly, information is recombinant in the sense that data output
can be used as an input to generate more data output.

Data Mining processes together with knowledge discovery can be combined to create
facts about individuals. Metadata and the internet of things have the ability to redefine
human existence in ways which are yet fully to be perceived. This, as Christina
Moniodis states in her illuminating article results in the creation of new knowledge
about individuals; something which even she or he did not possess. This poses serious
issues for the Court. In an age of rapidly evolving technology it is impossible for a
Judge to conceive of all the possible uses of information or its consequences:

"...The creation of new knowledge complicates data privacy law as it involves

information the individual did not possess and could not disclose, knowingly
or otherwise. In addition, as our State becomes an "information State" through
increasing reliance on information - such that information is described as the
"lifeblood that sustains political, social, and business decisions. It becomes
impossible to conceptualize all of the possible uses of information and
resulting harms. Such a situation poses a challenge for courts who are
effectively asked to anticipate and remedy invisible, evolving harms."

The contemporary age has been aptly regarded as "an era of ubiquitous dataveillance,
or the systematic monitoring of citizen's communications or actions through the use of
information technology". It is also an age of "big data" or the collection of data sets.
These data sets are capable of being searched; they have linkages with other data sets;
and are marked by their exhaustive scope and the permanency of collection. The
challenges which big data poses to privacy interests emanate from State and non-State
entities. Users of wearable devices and social media networks may not conceive of
themselves as having volunteered data but their activities of use and engagement

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result in the generation of vast amounts of data about individual lifestyles, choices and
preferences. Yvonne McDermott speaks about the quantified self in eloquent terms:

"...The rise in the so-called 'quantified self', or the self-tracking of biological,

environmental, physical, or behavioural information through tracking devices,
Internet-of-things devices, social network data and other means (?Swan.2013)
may result in information being gathered not just about the individual user, but
about people around them as well. Thus, a solely consent-based model does
not entirely ensure the protection of one's data, especially when data collected
for one purpose can be repurposed for another."

Daniel J. Solove deals with the problem of "aggregation". Businesses and

Governments often aggregate a variety of information fragments, including pieces of
information which may not be viewed as private in isolation to create a detailed
portrait of personalities and behaviour of individuals. Yet, it is now a universally
accepted fact that information and data flow are "increasingly central to social and
economic ordering". Individuals are identified with reference to tax records, voting
eligibility, and Government-provided entitlements. There is what is now described as
"'veillant panoptic assemblage', where data gathered through the ordinary citizen's
veillance practices finds its way to state surveillance mechanisms, through the
corporations that hold that data"

The balance between data regulation and individual privacy raises complex issues
requiring delicate balances to be drawn between the legitimate concerns of the State
on one hand and individual interest in the protection of privacy on the other.

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
disclosure by the data recipient of information pertaining to data transfer and use.

Another aspect which data protection regimes seek to safeguard is the principle of
non-discrimination which ensures that the collection of data should be carried out in a
manner which does not discriminate on the basis of racial or ethnic origin, political or
religious beliefs, genetic or health status or sexual orientation.

Formulation of a regime for data protection is a complex exercise which needs to be

undertaken by the State after a careful balancing of the requirements of privacy
coupled with other values which the protection of data sub-serves together with the
legitimate concerns of the State. One of the chief concerns which the formulation of a
data protection regime has to take into account is that while the web is a source of
lawful activity-both personal and commercial, concerns of national security intervene
since the seamless structure of the web can be exploited by terrorists to wreak havoc

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 and destruction on civilised societies. Cyber attacks can threaten financial systems.
Richard A. Posner, in an illuminating article, has observed:

"Privacy is the terrorist's best friend, and the terrorist's privacy has been
enhanced by the same technological developments that have both made data
mining feasible and elicited vast quantities of personal information from
innocents: the internet, with its anonymity, and the secure encryption of
digitized data which, when combined with that anonymity, make the internet a
powerful tool of conspiracy. The Government has a compelling need to exploit
digitization in defense of national security..."

Posner notes that while "people value their informational privacy", yet "they surrender it at
the drop of a hat" by readily sharing personal data in the course of simple daily transactions.
The paradox, he observes, can be resolved by noting that as long as people do not expect that
the details of their health, intimacies and finances among others will be used to harm them in
interaction with other people, they are content to reveal those details when they derive
benefits from the revelation. As long as intelligence personnel can be trusted to use the
knowledge gained only for the defence of the nation, "the public will be compensated for the
costs of diminished privacy in increased security from terrorist attacks". Posner's formulation
would indicate that the State does have a legitimate interest when it monitors the web to
secure the nation against cyber attacks and the activities of terrorists.

While it intervenes to protect legitimate State interests, the State must nevertheless put into
place a robust regime that ensures the fulfilment of a three-fold 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 re-appreciate
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 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
three-fold requirement for a valid law arises out of the mutual inter-dependence 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.

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

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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 unauthorizedly 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.

A distinction has been made in contemporary literature between anonymity on one hand and
privacy on the other. 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 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.

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.

The Union Government constituted a Group of Experts on privacy under the auspices of the
erstwhile Planning Commission. The Expert Group in its Report (dated 16 October, 2012)
proposed a framework for the protection of privacy concerns which, it was expected, would
serve as a conceptual foundation for legislation protecting privacy. … During the course of
the hearing of these proceedings, the Union Government has placed on the record an Office
Memorandum dated 31 July, 2017 by which it has constituted a committee chaired by Justice
B.N. Srikrishna, former Judge of the Supreme Court of India to review inter alia data
protection norms in the country and to make its recommendations. … Since the Government
has initiated the process of reviewing the entire area of data protection, it would be
appropriate to leave the matter for expert determination so that a robust regime for the
protection of data is put into place. We expect that the Union Government shall follow up on
its decision by taking all necessary and proper steps.

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 Part 4: The Right to Privacy Case: US Supreme Court decisions

The US Supreme Court decisions were extensively cited in support of the argument
that privacy is a fundamental right in the Right to Privacy Case. In this note, we
explore the summary of the cases from the judgement of Justice Chandrachud. In
the judgement, the cases are presented in a chronological order. We will present
them in a thematic order.

The US Constitution does not contain an express right to privacy. The courts have
protected the right to privacy under the first, third, fifth and fourteenth amendments.
The text of the amendments are as follows:

Amendment I: Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.

Amendment III: No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV: The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.

Amendment XIV. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

The cases can be organised under three major heads, right against search and
seizure under fourth amendment, right to privacy in personal life and informational
privacy.

Right against search and seizure

Boyd v. United States

In Boyd v. United States116 US 616 (1886) a person was required to compulsory

produce his personal private papers to be used against him as evidence in a judicial
proceeding. The question before the court was whether this was an unreasonable
search and seizure within the meaning of the Fourth Amendment. Justice Bradley
delivered the opinion of the Court and held as follows:

"The principles laid down in this opinion affect the very essence of constitutional
liberty and security... they apply to all invasions on the part of the Government and its
employees of the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors and the rummaging of his drawers that constitutes the essence of

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 the offence, but it is the invasion of his indefeasible right of personal security,
personal liberty, and private property, - it is the invasion of this sacred right ... 

And any compulsory discovery by extorting the party's oath, or compelling the
production of his private books and papers, to convict him of crime or to forfeit his
property, is contrary to the principles of a free Government... It may suit the purposes
of despotic power, but it cannot abide the pure atmosphere of political liberty and
personal freedom."

Olmstead v. United States

In Olmstead v. United States 277 US 438 (1928), phone conversation was

intercepted by means of wiretapping and produced as evidence. The question was
whether the phone tapping was a violation of Fourth and Fifth Amendments. In a 5:4
decision, it was held that there was no violation of the Fourth and Fifth Amendments.
Chief Justice Taft, in the majority judgment stated:

"The Amendment itself shows that the search is to be of material things - the person,
the house, his papers, or his effects.... The Amendment does not forbid what was done
here. There was no searching. There was no seizure. The evidence was secured by the
use of the sense of hearing, and that only. There was no entry of the houses or offices
of the defendants."

Justice Louis Brandeis in the minority judgement stated:

"... time works changes, brings into existence new conditions and purposes." Subtler
and more far-reaching means of invading privacy have become available to the
Government. Discovery and invention have made it possible for the Government, by
means far more effective than stretching upon the rack, to obtain disclosure in court of
what is whispered in the closet. Moreover, "in the application of a constitution, our
contemplation cannot be only of what has, been but of what may be." The progress of
science in furnishing the Government with means of espionage is not likely to stop
with wiretapping. Ways may someday be developed by which the Government,
without removing papers from secret drawers, can reproduce them in court, and by
which it will be enabled to expose to a jury the most intimate occurrences of the
home. Advances in the psychic and related sciences may bring means of exploring
unexpressed beliefs, thoughts and emotions..."

He questioned whether the Constitution affords no protection against such invasions

of individual security. Justice Brandeis answered:

" The makers of our Constitution undertook to secure conditions favorable to the

pursuit of happiness. They sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against the Government, the
right to be let alone - the most comprehensive of rights, and the right most valued by
civilized men. To protect that right, every unjustifiable intrusion by the Government
upon the privacy of the individual, whatever the means employed, must be deemed a
violation of the Fourth Amendment..."

Katz v. United States

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In Katz v. United States, 389 US 347 (1967) Charles Katz was a gambler who used
a public telephone booth to transmit illegal wagers. The FBI suspected him of wrong
doing. They attached a recording device to the exterior of the phone booth. The
recording was presented as evidence and Katz was convicted. He challenged the
recordings were obtained in violation of his Fourth Amendment rights. Justice
Chandrachud, thus, noted on the judgement:

The 1967 decision in Katz v. United States, 389 US 347 (1967) ("Katz") overruled
Olmstead v. United States (supra) and revolutionized the interpretation of the Fourth
Amendment regarding the extent to which a constitutional right to privacy applies
against Government interference. … The constitutional question in the case was
whether the 4th Amendment protection from 'unreasonable searches and seizures' was
restricted to the search and seizure of tangible property, or did it extend to intangible
areas such as conversations overheard by others. It was held that the Government's
eavesdropping activities violated the privacy, upon which petitioner justifiably relied,
while using the telephone booth, and thus constituted a "search and seizure" within
the meaning of the Fourth Amendment, and that the Amendment governs not only the
seizure of tangible items, but extends as well to the recording of oral statements.

Prior to 1967 when determining the 'reasonable expectation of privacy' for purposes
of discussing Fourth Amendment violations, the analysis was focused on whether the
authority had trespassed on a private location. This 'trespass doctrine' was the
prevailing test until Katz, which extended the protection of the Fourth Amendment
from 'places' to 'people', affording individuals more privacy even in public. The
'trespass doctrine' applied in Olmstead v. United States was held to be no longer
relevant. Justice Stewart wrote the majority (7:1) opinion and held that:

"One who occupies it [a telephone booth], shuts the door behind him, and pays
the toll that permits him to place a call is surely entitled to assume that the
words he utters into the mouthpiece will not be broadcast to the world. To read
the Constitution more narrowly is to ignore the vital role that the public
telephone has come to play in private communication. "

Justice Harlan wrote the concurring judgment holding that:

"a) that an enclosed telephone booth is an area where, like a home ... a person
has a constitutionally protected reasonable expectation of privacy; (b)
that electronic, as well as physical, intrusion into a place that is in this sense
private may constitute a violation of the Fourth Amendment...."

The reasonable expectation of privacy test was formulated as follows:

".... the Fourth Amendment protects people, not places." The question,

however, is what protection it affords to those people. Generally, as here, the
answer to that question requires reference to a "place." My understanding of
the rule that has emerged from prior decisions is that there is a twofold
requirement, first that a person has exhibited an actual (subjective) expectation
of privacy and, second, that the expectation be one that society is prepared to
recognize as "reasonable." Thus, a man's home is, for most purposes, a place

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 where he expects privacy, but objects, activities, or statements that he exposes
to the "plain view" of outsiders are not "protected," because no intention to
keep them to himself has been exhibited. On the other hand, conversations in
the open would not be protected against being overheard, for the expectation
of privacy under the circumstances would be unreasonable. "
Minnesota v. Olson

In Minnesota v. Olson 495 US 91 (1990), there was an overnight guest in a house.

The fourth amendment gives protection to people in relation to their ‘houses’. The
question was if protection extended to the guest. The court answered it in the
positive in favour of the guest.

Minnesota v. Carter

In Minnesota v. Carter 525 US 83 (1998), a person was visiting a person in his

apartment and was seen bagging cocaine by a police officer through a drawn
window blind. The question before the court was whether the person was protected
by the Fourth Amendment. The court contrasted it with the previous case (Minnesota
v. Olson). Justice Chandrachud, thus, reviewed the judgement:

The Court answered this question in the negative. Chief Justice Rehnquist delivered the
majority opinion of the Court noting that "[t]he text of the Amendment suggests that its
protections extend only to people in "their" houses." The case was distinguished from
Minnesota v. Olson, where the Supreme Court decided that an overnight guest in a house had
the sort of expectation of privacy that the Fourth Amendment protects. The Court was of the
view that while an overnight guest in a home may claim the protection of the Fourth
Amendment, one who is merely present with the consent of the householder may not. The
respondents, in this case, were not overnight guests, but were present for a business
transaction and were only in the home for a few hours. The Court held:

 "Property used for commercial purposes is treated differently for Fourth Amendment
purposes from residential property. "An expectation of privacy in commercial
premises, however, is different from, and indeed less than, a similar expectation in an
individual's home."... 

And while it was a "home" in which respondents were present, it was not their home...
the purely commercial nature of the transaction engaged in here, the relatively short
period of time on the premises, and the lack of any previous connection between
respondents and the householder, all lead us to conclude .... any search which may
have occurred did not violate their Fourth Amendment rights."

Justice Ginsburg wrote the dissenting opinion joined by Justice Stevens and Justice Souter,
and held that:

"Our decisions indicate that people have a reasonable expectation of privacy in their
homes in part because they have the prerogative to exclude others... Through the
host's invitation, the guest gains a reasonable expectation of privacy in the home.
Minnesota v. Olson, 495 U. S. 91 (1990), so held with respect to an overnight guest.
The logic of that decision extends to shorter term guests as well."

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Kyllo v. United States

In Kyllo v. United States 533 US 27 (2001), thermal imaging of a house of a person

was done to establish that he was growing marijuana. The question was if this was a
violation of the right to privacy. The court by a majority (5:4) held that it was a
violation of the right to privacy. Justice Scalia delivered the majority opinion of the
Court and held that there was no distinction between "off-the-wall" and "through-the-
wall" surveillance. Both lead to intrusion of individual privacy. She noted:

 "Limiting the prohibition of thermal imaging to "intimate details" would not only be
wrong in principle; it would be impractical in application, failing to provide "a
workable accommodation between the needs of law enforcement and the interests
protected by the Fourth Amendment,"... 

We...would have to develop a jurisprudence specifying which home activities are

"intimate" and which are not. And even when (if ever) that jurisprudence were fully
developed, no police officer would be able to know in advance whether his through-
the-wall surveillance picks up "intimate" details-and thus would be unable to know in
advance whether it is constitutional..."

Justice Chandrachud, thus, summarised the judgement:

It was concluded that even though no "significant" compromise of the homeowner's

privacy had occurred due to the thermal imaging, "the long view, from the original
meaning of the Fourth Amendment" must be taken forward.

United States v. Jones

In United States v. Jones 565 US 400 (2012), a Global Positioning System (GPS)
tracking device was attached on a vehicle to monitor the activities of the person. The
question before the court was if this constituted a search under the Fourth
Amendment. The judges agreed that it did but were divided 5:4 in their reasoning.
Justice Chandrachud, thus, reviewed the case:

Justice Scalia delivered the majority judgment, applying the trespass test. It was held
that the Government's physical intrusion onto the defendant's car for the purpose of
obtaining information constituted trespass and therefore a "search". Justice Scalia,
however, left unanswered the question surrounding the privacy implications of a
warrantless use of GPS data without physical intrusion.

Justice Sonia Sotomayor, concurred with Justice Scalia, but addressed the privacy
aspects of the judgment. Justice Sotomayor agreed with Justice Alito's concurrence
that "physical intrusion is now unnecessary to many forms of surveillance", and held
that "[i]n cases of electronic or other novel modes of surveillance that do not depend
upon a physical invasion on property, the majority opinion's trespassory test may
provide little guidance". It was further observed:

"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 in [GPS] data... will

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 be trips the indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the
AIDS treatment center, the strip club, the criminal defense attorney, the by-
the-hour motel, the union meeting, the mosque, synagogue or church, the gay
bar and on and on... The Government can store such records and efficiently
mine them for information years into the future... And because GPS
monitoring is cheap in comparison to conventional surveillance techniques
and, by design, proceeds surreptitiously, it evades the ordinary checks that
constrain abusive law enforcement practices: "limited police resources and
community hostility"...

 The net result is that GPS monitoring-by making available at a relatively low cost
such a substantial quantum of intimate information about any person whom the
Government, in its unfettered discretion, chooses to track-may "alter the relationship
between citizen and Government in a way that is inimical to democratic society"." 

Justice Sotomayor concluded, by stating:

"[I] doubt that people would accept without complaint the warrantless
disclosure to the Government of a list of every Web site they had visited [or
phone numbers dialled]... 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."

Florida v. Jardines

In Florida v. Jardines, 569 US 1 (2013), police used trained detection dog to sniff for
narcotics on the front porch of a private home. The question was if this constituted
search within the Fourth Amendment. Justice Scalia who delivered the opinion of the
Court held as follows:

"We... regard the area "immediately surrounding and associated with the home"- .....as
"part of the home itself for Fourth Amendment purposes." .... This area around the
home is "intimately linked to the home, both physically and psychologically," and is
where "privacy expectations are most heightened"." 

Justice Kagan, in a concurring opinion, wrote:

"Like the binoculars, a drug-detection dog is a specialized device for discovering

objects not in plain view (or plain smell). And as in the hypothetical above, that
device was aimed here at a home- the most private and inviolate (or so we expect) of
all the places and things the Fourth Amendment protects... the device is not "in
general public use," training it on a home violates our "minimal expectation of
privacy"-an expectation "that exists, and that is acknowledged to be reasonable"." 

Privacy in Personal Life

Meyer v. Nebraska

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The state of Nebraska prohibited teaching of foreign language to students till they
had completed eighth standard. In Meyer v. Nebraska 247. 262 US 390 (1923), this
was challenged as violative of individual liberty guaranteed by the fourteenth
amendment. The Court in a 7:2 decision, concluded that the state failed to show a
compelling need to infringe upon the rights of parents and teachers to decide on the
best course of education for young students. On liberty, Justice McReynolds held:

"Without doubt, it denotes not merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men. The established doctrine is that this liberty may not be
interfered with, under the guise of protecting the public interest, by legislative action
which is arbitrary or without reasonable relation to some purpose within the
competency of the State to effect."

Pierce v. Society of Sisters

The Oregon Compulsory Education Act, mandated that all children between the age
of eight and sixteen years were to attend public schools. In Pierce v. Society of
Sisters, (268) US 510 (1925), it was challenged as violative individual liberty. The
Court, relying upon Mayer v. Nebraska, struck down the act as an "unreasonable
interference with the liberty of the parents and guardians to direct the upbringing of
the children, and in that respect violates the Fourteenth Amendment".

Griswold v. Connecticut

A State law prohibiting the possession, sale, and distribution of contraceptives to

married couples. In Griswold v. Connecticut 405 US 438 (1972), the law was
challenged as violative of the right to marital privacy. Justice Douglas, who delivered
the main opinion, observed that this right emanated from "penumbras" of the
fundamental constitutional guarantees and rights in the Bill of Rights, which together
create "zones of privacy". The court held:

"The present case, then concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees... Would we allow the police
to search the sacred precincts of marital bedrooms of telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship."

Justice Goldberg in a concurring opinion noted:

"The fact that no particular provision of the Constitution explicitly forbids the State
from disrupting the traditional relation of the family - a relation as old and as
fundamental as our entire civilization - surely does not show that the Government was
meant to have the power to do so. Rather, as the Ninth Amendment expressly
recognizes, there are fundamental personal rights such as this one, which are protected

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 from abridgment by the Government, though not specifically mentioned in the
Constitution."

Eisenstadt v. Baird

A state law prohibited the distribution of contraceptives to unmarried persons. In

Eisenstadt v. Baird, 431 US 678 (1977), the law was challenged. The court
invalidated the law ruling that it it violated the Equal Protection Clause of the
Constitution. The court noted:

"It is true that in Griswold the right of privacy in question inhered in the marital
relationship. Yet the marital couple is not an independent entity with a mind and heart
of its own, but an association of two individuals each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted Governmental intrusion
into matters so fundamentally affecting a person as the decision whether to bear or
beget a child."

Justice Chandrachud, thus, noted on the expanding individual rights:

Continuing its trend of expansion of individual rights in the 1960s and 1970s,
particularly in the domain of reproductive health - the right to contraceptives as well
as the right to abortion, the decision in Carey v. Population Services International, 431
US 678 (1977).

Carey v. Population Services International

A New York law banned sale of contraceptives by persons other than licensed
pharmacists; sale or distribution to minors under sixteen; and display and
advertising of contraceptives. Justice Brennan delivered the majority opinion of the
Court and held that the Fourteenth Amendment is not for "adults alone" and
"Minors, as well as adults, are protected by the Constitution". The court noted:

"This right of personal privacy includes "the interest in independence in making

certain kinds of important decisions." ... While the outer limits of this aspect of
privacy have not been marked by the Court, it is clear that among the decisions that an
individual may make without unjustified Government interference are personal
decisions "relating to marriage...; procreation...; contraception...; family
relationships...; and childrearing and education..."

The court further held:

"The decision whether or not to beget or bear a child is at the very heart of this cluster
of constitutionally protected choices... This is understandable, for in a field that, by
definition, concerns the most intimate of human activities and relationships, decisions
whether to accomplish or to prevent conception are among the most private and
sensitive..."

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The Court also held that the right to privacy may be limited by a regulation, which is
governed by a sufficient 'compelling State interest'.

Roe v. Wade

A Texas law prohibited abortion except on medical advice for saving the life of the
mother. In Roe v. Wade 410 US 113 (1973), the law was challenged on the ground
that it invaded the right and the choice of a pregnant woman to terminate her
pregnancy and was violative of the "liberty" guaranteed under the Fourteenth
Amendment. The Court ruled 7:2 in favour that a right to privacy extended to a
women’s decision to have an abortion. abort. However, the right must be balanced
against the State's interests in regulating abortions. The court held:

The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, the Court has recognised that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the Constitution. In
varying contexts, the Court or individual Justices have, indeed, found at least the roots
of that right in the First Amendment; in the penumbras of the Bill of Rights; in the
Ninth Amendment; or in the concept of liberty guaranteed by the first section of the
Fourteenth Amendment...

 This right of privacy, whether it be founded in the Fourteenth Amendment's concept

of personal liberty and restrictions upon State action, as we feel it is, or, as the District
Court determined, in the Ninth Amendment's reservation of rights to the people, is
broad enough to encompass a woman's decision whether or not to terminate her
pregnancy." 

Planned Parenthood v. Casey

In Pennsylvania, law required spousal consent for a woman to abort. In Planned

Parenthood v. Casey, 505 US 833 (1992), the law was challenged on the grounds of
violation of the right to privacy. The court, relying on Roe v. Wade held:

"...Our precedents "have respected the private realm of family life which the State
cannot enter." ... These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of liberty
is the right to define one's own concept of existence, of meaning, of the universe, and
of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State...

The woman's right to terminate her pregnancy before viability is the most central
principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot
renounce."

Lawrence v. Texas

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In Lawrence v. Texas 539 US 558 (2003), the laws declaring sexual activity among
the same sex as illegal was challenged. The court by a majority of (6: 3 decision)
held the law to be violative of the constitutional guarantees. It noted:
"The petitioners are entitled to respect for their private lives. The State cannot demean
their existence or control their destiny by making their private sexual conduct a
crime... It is a promise of the Constitution that there is a realm of personal liberty
which the Government may not enter... The Texas statute furthers no legitimate State
interest which can justify its intrusion into the personal and private life of the
individual."

Obergefell v. Hodges

In Obergefell v. Hodges, 576 US_(2015), the constitutional challenge was to same

sex marriage. The court by a 5:4 decision held that the right was guaranteed by both,
the Due Process Clause and the Equal Protection Clause of the Fourteenth
Amendment. The court noted:

"Indeed, the Court has noted it would be contradictory to recognize a right of privacy
with respect to other matters of family life and not with respect to the decision to enter
the relationship that is the foundation of the family in our society." 

Informational Privacy

In Whalen v. Roe, 562 US 134 (2011) the court, for the first time, explicitly
recognized an individual's interest in non-disclosure of information. The Court
explored the status of privacy in the Constitution and noted:

"The cases sometimes characterized as protecting 'privacy' have in fact involved at

least two different kinds of interests. One is the individual interest in avoiding
disclosure of personal matters, and another is the interest in independence in making
certain kinds of important decisions."

In Nixon v. Administrator of General Services, 433 US 425 (1977), the President

then challenged the disclosure of the Presidential Recordings and Material
Preservation Act, 1974 on the ground that it violated his right of privacy. The court
rejected the plea and held ‘any intrusion must be weighed against the public
interest.’

NASA v. Nelson

NASA subjected its contract employees to several background checks. In NASA v.

Nelson, 562 US 134 (2011), the employees challenged this and argued that this
violated their right to privacy. They drew on the previous cases, Whalen v. Roe and
Nixon v. Administrator of General Services. The Court held unanimously that NASA's
background checks of contract employees did not violate any constitutional privacy
right. The court noted:

"We hold, however, that the challenged portions of the Government's background
check do not violate this right in the present case. The Government's interests as
employer and proprietor in managing its internal operations, combined with the

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 protections against public dissemination provided by the Privacy Act of 1974, satisfy
any "interest in avoiding disclosure" that may "arguably ha[ve] its roots in the
Constitution... The Government has good reason to ask employees about their recent
illegal-drug use."

The majority also rejected the contention that the collected data could be misused. It
noted:

"... the mere possibility that security measures will fail provides no "proper ground"
for a broad-based attack on Government information-collection practices. Ibid.
Respondents also cite a portion of SF-85 that warns of possible disclosure "[t]o the
news media or the general public." App. 89. By its terms, this exception allows public
disclosure only where release is "in the public interest" and would not result in "an
unwarranted invasion of personal privacy." Ibid. Respondents have not cited any
example of such a disclosure, nor have they identified any plausible scenario in which
their information might be unduly disclosed under this exception... In light of the
protection provided by the Privacy Act's non-disclosure requirement, and because the
challenged portions of the forms consist of reasonable inquiries in an employment
background check, we conclude that the Government's inquiries do not violate a
constitutional right to informational privacy." 

Justice Scalia concurred by criticised the court for not deciding the question whether
informational privacy was a constitutional right. He noted:

"If, on the other hand, the Court believes that there is a constitutional right to informational
privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that
right while coyly noting that the right is "assumed" rather than "decided"... The Court decides
that the Government did not violate the right to informational privacy without deciding
whether there is a right to informational privacy, and without even describing what
hypothetical standard should be used to assess whether the hypothetical right has been
violated." 

Riley v. California

In Riley v. California, 573 US_(2014), the digital content of a cell phone was
searched during an arrest. The constitutional validity of the search was challenged.
Chief Justice Roberts delivered the opinion of the Court and noted:

 "Before cell phones, a search of a person was limited by physical realities and tended
as a general matter to constitute only a narrow intrusion on privacy...the possible
intrusion on privacy is not physically limited in the same way when it comes to cell
phones...Data on a cell phone can also reveal where a person has been. Historic
location information is a standard feature on many smart phones and can reconstruct
someone's specific movements down to the minute, not only around town but also
within a particular building... Mobile application software on a cell phone, or "apps,"
offer a range of tools for managing detailed information about all aspects of a person's
life... 

 Modern cell phones are not just another technological convenience. With all they
contain and all they may reveal, they hold for many Americans "the privacies of

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 life"... The fact that technology now allows an individual to carry such information in
his hand does not make the information any less worthy of the protection for which
the Founders fought. Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is accordingly simple- get a
warrant."

Justice Chandrachud, thus, concluded the review of the development of the right to
privacy in the United States:

The development of the jurisprudence on the right to privacy in the United States of
America shows that even though there is no explicit mention of the word 'privacy' in
the Constitution, the courts of the country have not only recognised the right to
privacy under various Amendments of the Constitution but also progressively
extended the ambit of protection under the right to privacy. In its early years, the
focus was on property and protection of physical spaces that would be considered
private such as an individual's home. This 'trespass doctrine' became irrelevant when
it was held that what is protected under the right to privacy is "people, not places".
The 'reasonable expectation of privacy' test has been relied on subsequently by
various other jurisdictions while developing the right to privacy. Having located the
right to privacy in the 'person', American jurisprudence on the right to privacy has
developed to shield various private aspects of a person's life from interference by the
State - such as conscience, education, personal information, communications and
conversations, sexuality, marriage, procreation, contraception, individual beliefs,
thoughts and emotions, political and other social groups. Various judgments of the
Court have also analysed technological developments which have made surveillance
more pervasive and affecting citizens' privacy. In all these cases, the Court has tried to
balance the interests of the individual in maintaining the right to privacy with the
interest of the State in maintaining law and order. Decisions of the Supreme Court
decriminalizing consensual sexual activity between homosexuals and guaranteeing
same-sex couples the right to marry indicate that the right to privacy is intrinsic to the
constitutional guarantees of liberty and equal protection of laws.

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 Part 5: The Right to Privacy Case: Right to Life and Due Process

Article 21 of the constitution guarantees that the life or personal liberty of a person
can deprived by the state only in accordance with ‘procedure established by law.’
The protection is drawn from the American constitution, in which, the liberty is
subject to ‘due process of law’. Reading Article 21 literally, the state must have a
procedure and follow it, for depriving a person of his life of personal liberty. The court
will not get into reviewing substantive aspects of the procedure, that is, as to how
good the procedure was. In contrast, the American constitution requires ‘due process
of law’. This will encompass the procedural and well as substantive aspects. Article
21 was inspired by the American constitution. How did Article 21 come to have a
narrower protection for the individuals? The scope of ‘procedure established by law’
and its contrast with ‘due process of law’ has been there for all these decades. In the
Right to Privacy Case, the Supreme Court, recognising that Article 21 covers right to
privacy, visited the limitation of ‘procedure established by law’. We will review this in
the judgement of Justice Chandrachud.

The Indian Constitution makers had deliberately settled for the narrower protection of
‘procedure established by law’ than ‘due process of law’. In the course of drafting of
the Indian constitution, it was learnt from the US experience that ‘due process of law’
had got used to defeat welfare legislations. There was much debate whether to
include ‘due process of law.’ Dr. Ambedkar, the chairman of the drafting committee,
thus, presented the merits and demerits of the rival viewpoints:

There are two views on this point. One view is this; that the legislature may be trusted
not to make any law which would abrogate the fundamental rights of man, so to say,
the fundamental rights which apply to every individual, and consequently, there is no
danger arising from the introduction of the phrase 'due process'. Another view is this:
that it is not possible to trust the legislature; the legislature is likely to err, is likely to
be led away by passion, by party prejudice, by party considerations, and the
legislature may make a law which may abrogate what may be regarded as the
fundamental principles which safeguard the individual rights of a citizen. We are
therefore placed in two difficult positions. One is to give the judiciary the authority to
sit in judgment over the will of the legislature and to question the law made by the
legislature on the ground that it is not good law, in consonance with fundamental
principles. Is that a desirable principle? The second position is that the legislature
ought to be trusted not to make bad laws. It is very difficult to come to any definite
conclusion. There are dangers on both sides. For myself I cannot altogether omit the
possibility of a Legislature packed by party men making laws which may abrogate or
violate what we regard as certain fundamental principles affecting the life and liberty
of an individual. At the same time, I do not see how five or six gentlemen sitting in
the Federal or Supreme Court examining laws made by the Legislature and by dint of
their own individual conscience or their bias or their prejudices be trusted to
determine which law is good and which law is bad. It is rather a case where a man has
to sail between Charybdis and Scylla and I therefor would not say anything. I would
leave it to the House to decide in any way it likes.

Justice Chandrachud noted on the unfolding of ‘procedure established by law’ by the

court:

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 In Gopalan, the Preventive Detention Act, 1950 was challenged on the ground that it
denied significant procedural safeguards against arbitrary detention. The majority
rejected the argument that the expression 'procedure established by law' meant
procedural due process. Chief Justice Kania noted that Article 21 of our Constitution
had consciously been drawn up by the draftsmen so as to not use the word 'due
process' which was used in the American Constitution. Hence it was impermissible to
read the expression 'procedure established by law' to mean 'procedural due process' or
as requiring compliance with natural justice. Justice Patanjali Sastri held that reading
the expression 'due process of law' into the Constitution was impermissible since it
would lead to those 'subtle and elusive criteria' implied in the phrase which it was the
deliberate purpose of the framers of our Constitution to avoid. Similarly, Justice Das
also observed that our Constitution makers had deliberately declined to adopt "the
uncertain and shifting American doctrine of due process of law" which could not,
therefore, be read into Article 21. Hence, the view of the majority was that once the
procedure was established by a validly enacted law, Article 21 would not be violated.

Justice Chandrachud noted the dissent of Justice Fazl Ali in the Gopalan Case:

In his celebrated dissent, Justice Fazl Ali pointed out that the phrase 'procedure
established by law' was borrowed from the Japanese Constitution (which was drafted
under American influence at the end of the Second World War) and hence the
expression means 'procedural due process'. In Justice Fazl Ali's view the deprivation
of life and personal liberty under Article 21, had to be preceded by (i) a notice; (ii) an
opportunity of being heard; (iii) adjudication by an impartial tribunal; and (iv) an
orderly course of procedure. Formulating these four principles, Justice Fazl Ali held
thus:

"...Article 21 purports to protect life and personal liberty, and it would be a

precarious protection and a protection not worth having, if the elementary
principle of law … if the expression "procedure established by law" simply
means any procedure established or enacted by statute.

The Maneka Gandhi case is the next major land post on the theme. In the case, the
passport of Maneka Gandhi was impounded. This was a deprivation of personal
liberty. The question was whether this was in accordance with ‘procedure
established by law’. The judges found that the expression 'procedure established by
law' did not mean any procedure howsoever arbitrary or fanciful. The procedure had
to be fair, just and reasonable. The different judges noted:

...But the mere prescription of some kind of procedure cannot ever meet the mandate
of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary.

The principle of reasonableness, which legally as well as philosophically, is an

essential element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be "right and just
and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure
at all and the requirement of Article 21 would not be satisfied.

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 ...So I am convinced that to frustrate Article 21 by relying on any formal adjectival
statute, however, flimsy or fantastic its provisions be, is to rob what the constitution
treasures. ...To sum up, "procedure" in Article 21 means fair, not formal procedure.
"Law" is reasonable law, not any enacted piece.

Justice Chandrachud next moved to review Mithu v. State of Punjab. The Indian
Penal Code provides for a mandatory death penalty where a person commits murder
while undergoing a sentence of life imprisonment. Unlike other cases of death
sentence, the accused is not given the right to be heard. Justice Chandrachud noted:

The observations of the Court, which are extracted below would indicate that while
the Court did not use the expression "substantive due process" it recognised that a law
would be amenable to challenge under Article 21 not only on the ground that the
procedure which it prescribes is not fair, just and reasonable but on the touchstone of
having imposed a penalty which is savage or, as the Court held, an anathema of
civilised jurisprudence : (AIR 1983 SC 473).

These decisions have expanded the scope of Article 21 in a significant way

and it is now too late in the day to contend that it is for the legislature to
prescribe the procedure and for the courts to follow it; that it is for the
legislature to provide the punishment and for the courts to impose it. Two
instances, undoubtedly extreme, may be taken by way of illustration for the
purpose of showing how the courts are not bound, and are indeed not free, to
apply a fanciful procedure by a blind adherence to the letter of the law or to
impose a savage sentence. A law providing that an accused shall not be
allowed to lead evidence in self-defence will be hit by Articles 14 and 21.
Similarly, if a law were to provide that the offence of theft will be punishable
with the penalty of the cutting of hands, the law will be bad as violating
Article 21. A savage sentence is anathema to the civilized jurisprudence of
Article 21. These are, of course, extreme illustrations and we need have no
fear that our legislatures will ever pass such laws. But these examples serve to
illustrate that the last word on the question of justice and fairness does not rest
with the legislature. Just as reasonableness of restrictions under clauses (2) to
(6) of Article 19 is for the courts to determine, so is it for the courts to decide
whether the procedure prescribed by a law for depriving a person of his life or
liberty is fair, just and reasonable. The question which then arises before us is
whether the sentence of death, prescribed by Section 303 of the Penal Code for
the offence of murder committed by a person who is under a sentence of life
imprisonment, is arbitrary and oppressive so as to be violative of the
fundamental right conferred by Article 21.

Justice Chandrachud noted that in Mohd. Arif v. Supreme Court, a Constitution

Bench noted on the evolution of Article 21: ‘The wheel has turned full circle.
Substantive due process is now to be applied to the fundamental right to life and
liberty.’ Justice Chandrachud moved to the next judgement on the theme:

More recently, Justice Chelameswar, speaking for a Bench of two judges in Rajbala v.
State of Haryana, has struck a note of caution, by drawing attention to the position
that the expression 'due process of law' was consciously deleted in the drafting

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 process after the framing of the Constitution. Hence, in the view of the learned Judge,
it would be inappropriate to incorporate notions of substantive due process adopted in
the US while examining the constitutionality of Indian legislation. The Court
observed: (AIR 2016 SC 33).:

… the courts in this country do not undertake the task of declaring a piece of
legislation unconstitutional on the ground that the legislation is "arbitrary"
since such an exercise implies a value judgment and courts do not examine the
wisdom of some specific provision of the Constitution. To undertake such an
examination would amount to virtually importing the doctrine of "substantive
due process" employed by the American Supreme Court at an earlier point of
time while examining the constitutionality of Indian legislation. As pointed
out in the above extract, even in United States the doctrine is currently of
doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras
(AIR 1957 SC 297) declared that the doctrine of due process has no
application under the Indian Constitution. As pointed out by Frankfurter, J.
arbitrariness became a mantra."
Assimilating the judgement, Justice Chandrachud noted:

The constitutional history surrounding the drafting of Article 21 contains an abundant

reflection of a deliberate and studied decision of the Constituent Assembly to delete
the expression 'due process of law' from the draft Constitution when the Constitution
was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr. B.
R. Ambedkar had included the phrase but it came to be deleted after a careful
evaluation of the vagaries of the decision making process in the US involving
interpretation of the due process clause. Significantly, present to the mind of the
framers of our Constitution was the invalidation of social welfare legislation in the US
on the anvil of the due process clause on the ground that it violated the liberty of
contract of men, women and children to offer themselves for work in a free market for
labour. This model evidently did not appeal to those who opposed the incorporation of
a similar phrase into the Indian Constitution.

Yet the debates in the Constituent Assembly indicate that there was a substantial body
of opposition to the deletion of the due process clause, which eventually led Dr. B. R
Ambedkar to objectively sum up the rival view points for decision by the House.
Evidently 'due process' was substituted with the expression 'procedure established by
law'. 'Liberty' was qualified by 'personal'.

Having noticed this, the evolution of Article 21, since the decision in Cooper indicates
two major areas of change. First, the fundamental rights are no longer regarded as
isolated silos or water tight compartments. In consequence, Article 14 has been held
to animate the content of Article 21. Second, the expression 'procedure established by
law' in Article 21 does not connote a formalistic requirement of a mere presence of
procedure in enacted law. That expression has been held to signify the content of the
procedure and its quality which must be fair, just and reasonable. The mere fact that
the law provides for the deprivation of life or personal liberty is not sufficient to
conclude its validity and the procedure to be constitutionally valid must be fair, just
and reasonable. The quality of reasonableness does not attach only to the content of
the procedure which the law prescribes with reference to Article 21 but to the content
of the law itself. In other words, the requirement of Article 21 is not fulfilled only by

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 the enactment of fair and reasonable procedure under the law and a law which does so
may yet be susceptible to challenge on the ground that its content does not accord
with the requirements of a valid law. The law is open to substantive challenge on the
ground that it violates the fundamental right.

Justice Chandrachud noted that in reviewing a law on the grounds of violation of the
fundament rights, there are settled principles of constitutional interpretation. He
recounted the principles:

The first is the presumption of constitutionality which is based on the foundational

principle that the legislature which is entrusted with the duty of law making best
understands the needs of society and would not readily be assumed to have
transgressed a constitutional limitation. The burden lies on the individual who asserts
a constitutional transgression to establish it. Secondly, the Courts tread warily in
matters of social and economic policy where they singularly lack expertise to make
evaluations. Policy making is entrusted to the State. The doctrine of separation of
powers requires the Court to allow deference to the legislature whose duty it is to
frame and enact law and to the executive whose duty it is to enforce law. The Court
would not, in the exercise of judicial review, substitute its own opinion for the
wisdom of the law enacting or law enforcing bodies. In the context of Article 19, the
test of reasonableness was explained in the erudite words of Chief Justice Patanjali
Sastri in State of Madras v. V. G. Row, where the learned Chief Justice held thus:

It is important in this context to bear in mind that the test of reasonableness,

wherever prescribed, should be applied to each individual statute impugned,
and no abstract standard, or general pattern of reasonableness can be laid
down as applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the judges
participating in the decision should play an important part, and the limit of
their interference with legislative judgment in such cases can only be dictated
by their sense of responsibility and self-restraint and the sobering reflection
that the Constitution is meant not only for people of their way of thinking but
for all, and that the majority of the elected representatives of the people have,
in authorizing the imposition of the restrictions, considered them to be
reasonable.

Setting up these boundaries, Justice Chandrachud emphasised that the courts have
the constitutional power to adjudicate upon the validity of a law. He noted:

When the validity of a law is questioned on the ground that it violates a guarantee
contained in Article 21, the scope of the challenge is not confined only to whether the
procedure for the deprivation of life or personal liberty is fair, just and reasonable.
Substantive challenges to the validity of laws encroaching upon the right to life or
personal liberty has been considered and dealt with in varying contexts, such as the
death penalty (Bachan Singh) and mandatory death sentence (Mithu), among other

187
 cases. A person cannot be deprived of life or personal liberty except in accordance
with the procedure established by law. Article 14, as a guarantee against arbitrariness,
infuses the entirety of Article 21. The inter-relationship between the guarantee against
arbitrariness and the protection of life and personal liberty operates in a multi-faceted
plane. First, it ensures that the procedure for deprivation must be fair, just and
reasonable. Second, Article 14 impacts both the procedure and the expression "law".
A law within the meaning of Article 21 must be consistent with the norms of fairness
which originate in Article 14. As a matter of principle, once Article 14 has a connect
with Article 21, norms of fairness and reasonableness would apply not only to the
procedure but to the law as well.

Justice Chandrachud concluded:

Above all, it must be recognized that judicial review is a powerful guarantee against
legislative encroachments on life and personal liberty. To cede this right would dilute
the importance of the protection granted to life and personal liberty by the
Constitution. Hence, while judicial review in constitutional challenges to the validity
of legislation is exercised with a conscious regard for the presumption of
constitutionality and for the separation of powers between the legislative, executive
and judicial institutions, the constitutional power which is vested in the Court must be
retained as a vibrant means of protecting the lives and freedoms of individuals.

The danger of construing this as an exercise of 'substantive due process' is that it

results in the incorporation of a concept from the American Constitution which was
consciously not accepted when the Constitution was framed. Moreover, even in the
country of its origin, substantive due process has led to vagaries of judicial
interpretation. Particularly having regard to the constitutional history surrounding the
deletion of that phrase in our Constitution, it would be inappropriate to equate the
jurisdiction of a Constitutional Court in India to entertain a substantive challenge to
the validity of a law with the exercise of substantive due process under the US
Constitution. Reference to substantive due process in some of the judgments is
essentially a reference to a substantive challenge to the validity of a law on the ground
that its substantive (as distinct from procedural) provisions violate the Constitution.

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 Freedom of Speech and the Internet Shutdown:
Supreme Court of India-II

The Government of India, on August 5, 2019, brought about constitutional changes

in Jammu and Kashmir, breaking up the state in the Union Territories of Jammu,
Kashmir and Ladhaak. Apprehending trouble, all mobile phone networks, internet
services and landline connectivity were discontinued in the Kashmir valley and in
some districts of Jammu and Ladakh. Several applications were filed before the
Supreme Court of India challenging the orders shutting down the internet as violative
of the constitutional rights and seeking restoration of the internet.

In part I of the case, we noted that the Supreme Court concluded that the freedom of
speech and expression extended to exercising it using the medium of the internet.
The freedom, however, is subject to Article 19(2). The article reads:

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.

A law abridging the freedom of speech and expression must meet the requirements
of Article 19(2). That is, it must qualify under one of the listed categories and the
restriction be reasonable. The term ‘reasonable restriction’ occurs in relation to all
the freedoms in Article 19. The court has explored and expanded the term in several
cases. The court followed the chain of the cases to extract and re-formulate the
principles. We will follow the chain from the beginning. The following is the first case
which came before the court and became foundational.

Chintaman Rao v. State of Madhya Pradesh

The State of Madhya Pradesh enacted a law to regulate manufacture of bidis,

titled
the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural
Purposes) Act, 1948. The object of the law was to ensure adequate labour for
agricultural operations in bidi manufacturing areas of the state. Under the Act, the
government could fix the agricultural season and prohibit any person from
manufacturing bidis or employ any person for manufacture of bidis. The
government passed an order prohibiting any person residing in certain villages
from engaging in the manufacture of bidis. The affected persons challenged the
order to be a violation of their freedom to engage in any trade, occupation and
profession. Article 19(6) gave the power to the state to impose ‘reasonable
restrictions’ on the freedom. The Supreme Court noted: 95

The phrase "reasonable restriction" connotes that the limitation imposed on a

95
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 1950
189
 person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public. The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course which reason
dictates. Legislation which arbitrarily or excessively invades the right cannot be
said to contain the quality of reasonableness and unless it strikes a proper balance
between the freedom guaranteed in Article 19(1)(g) and the social control permitted
by clause (6) of Article 19, it must be held to be wanting in that quality.

The court applied the principle to the dispute. The government had declared the
agricultural season for a good part of the year. The court noted that the object of
the legislation could have been achieved by limiting manufacture to the
agricultural season. Even in the agricultural season, hours of work could have
been regulated than a complete ban. The court further noted:

The effect of the provisions of the Act, however, has no reasonable relation to the
object in view but is so drastic in scope that it goes much in excess of that object.
Not only are the provisions of the statute in excess of the requirements of the case
but the language employed prohibits a manufacturer of bidis from employing any
person in his business, no matter wherever that person may be residing. In other
words, a manufacturer of bidis residing in this area cannot import labour from
neighbouring places in the district or province or from outside the province. Such a
prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation
whatsoever to the object which the legislation seeks to achieve and as such cannot
be said to be a reasonable restriction on the exercise of the right.

The court further noted that everyone in those villages was not an agriculturists or
an agricultural worker. The law prohibited all persons from engaging in the
manufacture of bidi and make a living. The court concluded:

The statute as it stands, not only compels those who can be engaged in agricultural
work from not taking to other avocations, but it also prohibits persons who have no
connection or relation to agricultural operations from engaging in the business of
bidi making and thus earning their livelihood.

The court ruled that the law exceeded reasonable restriction and thus was violative
of the freedom.

State of Madras v. V.G. Row

People's Education Society, Madras was a charitable organisation for cultural,

political and social education of the public. The government of Madras, by a
notification, declared it to be an unlawful association on the grounds that it posed a
danger to public peace. Row, the secretary of the association, challenged that the
order violated his right to form associations given by article 19(1)(c). The state can
impose reasonable restrictions under article 19(4). The challenge came before the
Supreme Court. The Supreme Court, thus, formulated the principle for judging
reasonableness:

It is important in this context to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no abstract

190
 standard, or general pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing conditions at the time,
should all enter into the judicial verdict.

Applying to the details of the order, the court concluded that the order imposed
unreasonable restriction and was unconstitutional and void.

Mohammed Faruk v. State of Madhya Pradesh

This case was on the restrictions on freedom of trade, occupation and

profession. The Supreme Court stipulated the principle of reasonableness as
follows.96

The Court must in considering the validity of the impugned law imposing a
prohibition on the carrying on of a business or profession, attempt an evaluation of
its direct and immediate impact upon the fundamental rights of the citizens affected
thereby and the larger public interest sought to be ensured in the light of the object
sought to be achieved, the necessity to restrict the citizen's freedom ... the
possibility of achieving the object by imposing a less drastic restraint ... or that a
less drastic restriction may ensure the object intended to be achieved."

The Supreme Court, thus, was looking at all aspects of both the sides, the freedom
and the state action, and trying to balance the two. In the next case, the Supreme
Court recognised that the constitutional courts world over were engaged in a
similar balancing of the individual rights on the one and the public good on the
other.

Om Kumar v. Union of India

In this case, the Supreme Court connected with the other world constitutional
courts and identified that the other courts were referring to ‘reasonable restrictions’
as ‘proportionality’.97 It noted on the principle of proportionality:

The principle originated in Prussia in the nineteenth century and has since been
adopted in Germany, France and other European countries. The European Court of
Justice at Luxembourg and the European Court of Human Rights at Strasbourg have
applied the principle … But even long before that, the Indian Supreme Court has
applied the principles of 'proportionality' to legislative action since 1950.

The court, thus, explained the principle of proportionality:

By "proportionality", we mean the question whether, while regulating exercise of

fundamental rights, the appropriate or least-restrictive choice of measures has been
made by the legislature or the administrator so as to achieve the object of the
legislation or the purpose of the administrative order, as the case maybe. Under the
principle, the court will see that the legislature and the administrative authority
96
Mohd. Faruk v. State of M.P., AIR 1970 SC 93.
97
Om Kumar v. Union of India, (2001) 2 SCC 386.
191
 maintain a proper balance between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping
in mind the purpose which they were intended to serve. The legislature and the
administrative authority are, however, given an area of discretion or a range of
choices but as to whether the choice made infringes the rights excessively or not is
for the court. That is what is meant by proportionality.

This was the first judgement of the Supreme Court in which the term ‘proportionality’
was used. In the next two decades, the Supreme Court significantly drew the
proportionality principle from the constitutional courts and academic writings. The
following case is foundational in developing the principle.

Modern Dental College Case: Proportionality Principle

The Madhya Pradesh government had made laws for common entrance test and
admission criterion in private dental colleges. Modern Dental College challenged it
as a violation of its right to occupation under article 19(1)(g) to run education
institutions. The constitutional challenge came before the Supreme Court. The
court noted that the constitutional rights are not absolute. Article 19 on the one
hand gives the freedom at the same time, empowers the government to impose
reasonable restrictions in public interest. The court commented on this:

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.

Exploring the tension further, the court recognised that both are integral to
democracy. Individual rights are a fundamental component of democracy. At the
same time, these are being limited by the representatives of the same individuals
for a common good. The court explored the question as to how this tension could
be resolved. It noted:

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.

The challenge then is in enmeshing the rights and the limitations in a harmonious
co-existence. This was to be done by ‘proportionality’. Constitutional courts all over
the world have been doing this balancing between rights and limitations. This has
led to a lot of scholarship and writing.

Internet Shut Down case

192
In the present the internet shutdown case, the court reviewed the position of the
different constitutional courts and academic writers. The struggle of the courts is if
they place a strong burden on the government to justify the law, law will fail the
proportionality test. This also becomes a case of the judiciary stepping in the
domain of the legislature-executive. On the other hand, if a demand is not made
on the law maker, any measure proposed by the law may qualify. The court noted
the four-fold enquiry proposed by a constitutional author, Prof. David Bilchitz,
developing a balance between the two positions: 98

(MN1) All feasible alternatives need to be identified, with courts being explicit as
to criteria of feasibility;

(MN2) The relationship between the government measure under consideration, the
alternatives identified in MN1 and the objective sought to be achieved must be
determined. An attempt must be made to retain only those alternatives to the
measure that realise the objective in a real and substantial manner;

(MN3) The differing impact of the measure and the alternatives (identified in MN2)
upon fundamental rights must be determined, with it being recognised that this
requires a recognition of approximate impact; and

(MN4) Given the findings in MN2 and MN3, an overall comparison (and balancing
exercise) must be undertaken between the measure and the alternatives. A
judgement must be made whether the government measure is the best of all feasible
alternatives, considering both the degree to which it realises the government
objective and the degree of impact upon fundamental rights ('the comparative
component').

The court, in following the proportionality principle, formulated the steps that must
be taken by the authorities before passing any order:

In the first stage itself, the possible goal of such a measure intended at imposing
restrictions must be determined. It ought to be noted that such goal must be
legitimate. However, before settling on the aforesaid measure, the authorities must
assess the existence of any alternative mechanism in furtherance of the aforesaid
goal. The appropriateness of such a measure depends on its implication upon the
fundamental rights and the necessity of such measure. It is undeniable from the
aforesaid holding that only the least restrictive measure can be resorted to by the
State, taking into consideration the facts and circumstances. Lastly, since the order
has serious implications on the fundamental rights of the affected parties, the same
should be supported by sufficient material and should be amenable to judicial
review.

The court noted that the degree and scope of the restriction must stand in relation
to what is actually necessary to attend to the emergent situation. The court noted
on the next stage:

98
David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L.
Lazarus, C. McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014)

193
 To consider the immediate impact of restrictions upon the realization of the
fundamental rights, the decision maker must prioritize the various factors at stake.
Such attribution of relative importance is what constitutes proportionality. It ought
to be noted that a decision which curtails fundamental rights without appropriate
justification will be classified as disproportionate. The concept of proportionality
requires a restriction to be tailored in accordance with the territorial extent of the
restriction, the stage of emergency, nature of urgency, duration of such restrictive
measure and nature of such restriction. The triangulation of a restriction requires the
consideration of appropriateness, necessity and the least restrictive measure before
being imposed.

Application of the Principle

The court applied the proportionality principle to the internet shutdown. It noted:

Having observed the law on proportionality and reasonable restrictions, we need to

come back to the application of restrictions on the freedom of speech over the
internet. The State has vehemently opposed selective access to internet services based
on lack of technology to do the same. If such a contention is accepted, then the
Government would have a free pass to put a complete internet blockage every time.
Such complete blocking/prohibition perpetually cannot be accepted by this Court.

The court, however, recognised the contention of the government that the internet
could be used to propagate terrorism. The court observed:

… achievement of peace and tranquillity within the erstwhile State of Jammu and
Kashmir requires a multifaceted approach without excessively burdening the
freedom of speech. In this regard the Government is required to consider various
options under Article 19(2) of the Constitution, so that the brunt of exigencies is
decimated in a manner which burdens freedom of speech in a minimalist manner.

Having enmeshed proportionality in the substantive aspects, the court emphasised

that the procedure by which the internet shutdown is secured is as important as
the substantive aspect.

Procedure for Internet Shutdown

The court appraised the procedural mechanisms for securing the internet
shutdown. It listed:

The procedural mechanism contemplated for restrictions on the Internet, is twofold:

first is contractual, relating to the contract signed between Internet Service
Providers and the Government, and the second is statutory, under the Information
Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act.

The court elaborated on the procedure within the Information Technology Act for
restricting access to the internet:

Section 69A of the Information Technology Act, 2000 read with the Information
Technology (Procedures and Safeguards for Blocking for Access of Information by

194
 Public) Rules, 2009 allows blocking of access to information. This Court, in the
Shreya Singhal case, upheld the constitutional validity of this Section and the Rules
made thereunder. It is to be noted however, that the field of operation of this section
is limited in scope. The aim of the section is not to restrict/block the internet as a
whole, but only to block access to particular websites on the internet. Recourse
cannot, therefore, be made by the Government to restrict the internet generally
under this section.

The court noted on the application of Section 144 to the internet:

Prior to 2017, any measure restricting the internet generally or even shutting down
the internet was passed under Section 144, Cr.P.C., a general provision granting
wide powers to the Magistrates specified therein to pass orders in cases of
apprehended danger. … The position has changed since 2017, with the passage of
the Suspension Rules under Section 7 of the Telegraph Act. With the promulgation
of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom
services including access to the internet.

The Suspension Rules

The government had suspended the internet under the Suspension Rules framed
under the Telegraph Act. The court noted that the petitioners were not challenging
the constitutional validity of the rules but only the orders passed under them. The
court noted:

The Suspension Rules lay down certain safeguards, keeping in mind the fact that an
action under the same has a large effect on the fundamental rights of citizens. It
may be mentioned here that we are not concerned with the constitutionality of the
Suspension Rules, and arguments on the same were not canvassed by either side.
As such, we are limiting our discussion to the procedure laid down therein. Rule 2
lays down the procedure to be followed for the suspension of telecom services.

Rule 2 limits Secretary to the Home Ministry level of officers to pass the order. The
order has to be reasoned and forwarded to a review committee within one working
day. The review committee has to record its finding within 5 working days whether
the order is in compliance with Section 5(2) of the Telegraph Act. Section 5(2) of
the Telegraph Act reads:

(2) On the occurrence of any public emergency, or in the interest of the public
safety, the Central Government or a State Government or any officer specially
authorised in this behalf by the Central Government or a State Government may, if
satisfied that it is necessary or expedient so to do in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign states
or public order or for preventing incitement to the commission of an offence, for
reasons to be recorded in writing, by order, direct that any message or class of
messages to or from any person or class of persons, or relating to any particular
subject, brought for transmission by or transmitted or received by any telegraph,
shall not be transmitted, or shall be intercepted or detained…

The court noted on the section:

195
 … the pre-requisite for an order to be passed under this sub-section, and therefore
the Suspension Rules, is the occurrence of a "public emergency" or for it to be "in
the interest of public safety".

The court explored the meaning and scope of word ‘public emergency’:

The word 'emergency' has various connotations. Everyday emergency, needs to be

distinguished from the type of emergency wherein events which involve, or might
involve, serious and sometimes widespread risk of injury or harm to members of
the public or the destruction of, or serious damage to, property. … We may only
point out that the 'public emergency' is required to be of serious nature, and needs to
be determined on a case to case basis.

The court noted on the further requirement of Section 5 of the Telegraph Act:

The second requirement of Section 5(2) of the Telegraph Act is for the authority to
be satisfied that it is necessary or expedient to pass the orders in the interest of the
sovereignty and integrity of India, the security of the State, friendly relations with
foreign states or public order or for preventing incitement to the commission of an
offence, and must record reasons thereupon.

The court elaborated this aspect:

The term 'necessity' and 'expediency' brings along the stages an emergency is going
to pass through usually. A public emergency usually would involve different stages
and the authorities are required to have regards to the stage, before the power can
be utilized under the aforesaid rules. The appropriate balancing of the factors
differs, when considering the stages of emergency and accordingly, the authorities
are required to triangulate the necessity of imposition of such restriction after
satisfying the proportionality requirement.

The court having reviewed the procedure and safe guards within it for passing of
order shutting down the internet, moved to the publication of the orders.

Publication of Orders

The court noted that the suspension rules do not provide for the publication of
the orders. The court introduced it by observing:

… a settled principle of law, and of natural justice, is that an order, particularly one
that affects lives, liberty and property of people, must be made available. Any law
which demands compliance of the people requires to be notified directly and
reliably. This is the case regardless of whether the parent statute or rule prescribes
the same or not. We are therefore required to read in the requirement of ensuring
that all the orders passed under the Suspension Rules are made freely available,
through some suitable mechanism.

The right of the people to have access to the orders is important. The
government had claimed privilege in not disclosing or placing the internet

196
 shutdown orders before the court. On this point, the court ruled:

As a general principle, on a challenge being made regarding the curtailment of

fundamental rights as a result of any order passed or action taken by the State which
is not easily available, the State should take a proactive approach in ensuring that
all the relevant orders are placed before the Court, unless there is some specific
ground of privilege or countervailing public interest to be balanced, which must be
specifically claimed by the State on affidavit. In such cases, the Court could
determine whether, in the facts and circumstances, the privilege or public interest
claim of the State overrides the interests of the Petitioner. Such portion of the order
can be redacted or such material can be claimed as privileged, if the State justifies
such redaction on the grounds, as allowed under the law.

A person can challenge the constitutional validity of an order, only if he has access
to it. The court brought out that the court cannot be denied full access to the order.

Conclusion of the Court

Following the insistence of the court, the government placed four orders confirmed
by the Principal Secretary to the Government of Jammu and Kashmir, Home
Department. The government informed the court that the relaxation measures
were continually being explored while the possibility of danger to public safety
persisted. In this context, the court did not decide the constitutional validity of the
orders. Instead, it required the government to pass fresh orders based on the
guidelines provided in the case. The court noted:

We believe that the authorities have to pass their orders based on the guidelines
provided in this case afresh. … As all the orders have not been placed before this
Court and there is no clarity as to which orders are in operation and which have
already been withdrawn, as well as the apprehension raised in relation to the
possibility of public order situations, we have accordingly moulded the relief in the
operative portion.

The court concluded by giving the following order on the claims made before it:

1. The Respondent State/competent authorities are directed to publish all orders in

force and any future orders under Section 144, Cr.P.C and for suspension of
telecom services, including internet, to enable the affected persons to challenge it
before the High Court or appropriate forum.

2. We declare that the freedom of speech and expression and the freedom to
practice any profession or carry on any trade, business or occupation over the
medium of internet enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamental rights should be in
consonance with the mandate under Article 19 (2) and (6) of the Constitution,
inclusive of the test of proportionality.

3. An order suspending internet services indefinitely is impermissible under the

Temporary Suspension of Telecom Services (Public Emergency or Public Service)
Rules, 2017. Suspension can be utilized for temporary duration only.

197
 4. Any order suspending internet issued under the Suspension Rules, must adhere to
the principle of proportionality and must not extend beyond necessary duration.

5. Any order suspending internet under the Suspension Rules is subject to judicial
review based on the parameters set out herein.

6. The existing Suspension Rules neither provide for a periodic review nor a time
limitation for an order issued under the Suspension Rules. Till this gap is filled, we
direct that the Review Committee … must conduct a periodic review within seven
working days of the previous review …

7. We direct the respondent State/competent authorities to review all orders

suspending internet services forthwith.

8. In any case, the State/concerned authorities are directed to consider forthwith

allowing government websites, localized/limited e-banking facilities, hospitals
services and other essential services, in those regions, wherein the internet services
are not likely to be restored immediately.

Conclusion

The judgement is a first from a constitutional court in exploring the internet, freedom
of speech and the limits of the government in restricting it. The court following the
chain of cases on the freedom of speech and expression and the freedom of press,
recognised the freedom of speech and expression over the internet as a
fundamental right. The freedom, however, is subject to the limitation in Article 19(2).
In working the interplay of the freedom and limitations on it in Article 19(2), the court
sharpened the proportionality principle. A significant outcome of the case of general
application, applying the proportionality principle, is that the government cannot
indefinitely suspend the internet service. The implications of the case and the theme
of the internet and the freedom of speech will develop in the coming decades.

198
199
 Annexure
Original Session Plan

Session Plan

Session 1

Topic: Article 12: Scope of ‘state’

The session will introduce the arrangement of the Constitution and the Fundamental
Rights. The Fundamental Rights apply only to the ‘state’ as defined in Article 12, and
not private bodies. The definition of state includes ‘other authorities’, which does not
have a ready and fixed meaning. The term has been a subject of judicial
interpretation since the inception of the Constitution. The session will explore the
early decades, culminating in the International Airport Authority of India Case.

Reading: Ramana Dayaram Shetty v. International Airport Authority of India, AIR

1979 SC 1628.

Session 2

Topic: The Changing Contours of ‘state’

The International Airport Authority of India Case expanded the scope of ‘other
authorities’ by including all ‘instrumentalities’ and ‘agencies’ of the government in its
fold. It gave a set of criterion for deciding whether a body qualified to be an
instrumentality or agency of the government. The criterion got applied and
consolidated in the subsequent decades. Liberalisation and globalisation of the
economy put the public sector organisations in competition with the expanding
private sector. The state controlled bodies got transformed and also, expected a
level playing field. The term ‘other authorities’ took new shape in the context of
globalisation and liberalisation.

Reading: Zee Tele Films Limited v. Union of India, AIR 2005 SC 2677.

Session 3

Topic: Right to Equality: Introduction

Article 14 of the Constitution confers to every person ‘equality before law’ and ‘equal
protection of the laws’. The Maneka Gandhi Case, vacated the earlier narrower
meaning by formulating that any arbitrary or unreasonable action of the state violates
the right to equality. The session will explore this landmark case.

Reading: Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Session 4

Topic: Right to Equality: Regulations of Businesses

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A law which makes discriminatory categories of people without basis or is arbitrary or
unreasonable is violative of the right to equality. Laws regulating businesses are
frequently challenger before the courts. The session will explore the application of
the right to equality to regulations of businesses.

Reading: Swiss Ribbons Pvt. Ltd v Union of India, AIR 2019 SC 739.

Session 5

Topic: Right to Equality: Award of Licences and Contracts

The award of licences and contracts by the government too is a state action. The
International Airport Authority of India Case formulated that this is subject to the right
to equality. Thus, an award of a contract or licence by the government, following a
process or procedure which is arbitrary or unreasonable, is violative of article 12.
Every major award of a contract by the government gets challenged before the
courts. A chain of cases has developed on this theme over the past 40 years. The
session will explore the theme of award of contracts and licences.

Reading: Reliance Telecom Limited v Union of India, AIR 2017 SC 337.

Session 6

Topic: Freedom of Speech

What makes us human is our capacity for speech and expression. Article 19(1)(a)
guarantees the freedom for speech and expression. The freedom is subject to
‘reasonable restrictions’ in the larger interest. The freedom is available only to
citizens and not corporations. The freedom significantly affects politics, newspapers,
artists, media and entertainment, internet, and businesses. The session will explore
the development of the principles of ‘freedom of speech and expression’.

Reading: Shreya Singhal v Union of India, AIR 2015 SC 1523.

Session 7

Topic: Freedom of Commercial Speech

The Supreme Court stipulated in the Tata Press Limited Case that speech includes
‘commercial speech’. Thus, advertisements and all other forms of business
communication and expression are protected by the ‘freedom of speech and
expression.’

Reading: Tata Press Limited v Mahanagar Telephone Nigam Limited, AIR 1995 SC
2438.

Session 8

Topic: Review and Integration

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The session reviews and integrates learning in the prior sessions.

Session 9

Topic: Freedom of Speech and Defamation

There are conflicting demands on speech. Freedom of speech requires that only
‘reasonable restrictions’ can be imposed on it. At the same time, not to encroach and
defame a person is as a valuable human value. To guard against defamation, no
restriction on freedom of speech would seem to be unreasonable. The two human
values are in conflict. Indian businesses have claimed defamation against the media
for critical news reports, while the media has claimed protection under the freedom
of speech. The session explores the theme of defamation.

Reading: Subramanian Swamy v Union of India, AIR 2016 SC 2728.

Session 10 and 11

Topic: Freedom of Business, Trade and Profession

Article 19(1)(g) guarantees to every citizen the freedom to carry on any business,
trade, profession or occupation. Like all freedoms, only reasonable restrictions can
be imposed on this freedom in the larger general interest. The freedom has been
continuously brought before the courts over different aspects of businesses and their
regulation. The session will explore the development of this freedom and its working
in the liberalised economy.

Reading:

Cellular Operators Association of India v Telecom Regulatory Authority of India, AIR

2016 SC 2336.

Karnataka Live Band Restaurants Association v State of Karnataka, AIR 2018 SC

731.

Session 12

Topic: Right to Life

Article 21 of the Constitution provides that the ‘life or personal liberty’ of a person can
be deprived only by following a ‘procedure established by law.’ In the early decades,
two questions came before the courts. The first question was would any procedure
established by law do or the procedure must be a fair one? The second question
was whether ‘life’ was only in a bodily corporeal sense or an extended one, including
everything which makes life human and meaningful. The Maneka Gandhi Case
settled both these questions in the affirmative. The session will explore the
development of ‘right to life’, culminating in the Maneka Gandhi Case.

Reading: Maneka Gandhi v Union of India, AIR 1978 SC 597.

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Session 13

Topic: Right to Privacy

Having given an extended meaning to the term ‘life’, does the right to life include the
right to privacy? The judgements of the Supreme Court were conflicting. The
Supreme Court, in the Aadhaar Case, took it up for resolution. The session will
explore the vast scope of ‘privacy’ and resolution of the right to privacy.

Reading: Aadhaar Case- I (Justice K. S. Puttaswamy (Retd.) v. Union of India, AIR

2017 SC 4161)

Session 14

Topic: Privacy and Electronic Data

In Aadhaar Case- I, the Supreme Court established that the right to privacy was a
Fundamental Right. Privacy has several dimensions and aspects. It includes
electronic data on a person. The Supreme Court, in Aadhaar Case- II subjected
storage and use of electronic data, being collected under Aadhaar, to the limitation of
the Fundamental Rights.

Reading: Aadhaar Case- II (Justice K. S. Puttaswamy (Retd.) v. Union of India,

September 26, 2018)

Session 15

Topic: Review

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