Page 62 - GSTL_ 28th May 2020_Vol 36_Part 4

508 GST LAW TIMES [ Vol. 36
Mathew, J. stated that, however, the “right to privacy was not absolute”
and that the makers of our Constitution wanted to ensure conditions fa-
vourable to the pursuit of happiness as explained in Olmstead v. United
States, US at p. 471; the privacy right can be denied only when an “im-
portant countervailing interest is shown to be superior”, or where a com-
pelling State interest was shown. (Mathew, J. left open the issue whether
moral interests could be relied upon by the State as compelling interests).
Any right to privacy, the Learned Judge said (see para 24), must encompass
and protect the personal intimacies of the home, the family, marriage,
motherhood, procreation and childbearing. This list was however not ex-
haustive. He explained (see para 25) that, if there was State intrusion there
must be “a reasonable basis for intrusion”. The right to privacy, in any
event (see para 28), would necessarily have to go through a process of case-
by-case development.
38. Coming to the particular U.P. Regulations 855 and 856, in question in
Gobind, Mathew, J. examined their validity (see para 30). These, according
to him, gave large powers to the police and needed, therefore, to be read
down, so as to be in harmony with the Constitution, if they had to be saved
at all. “Our Founding Fathers were thoroughly opposed to a Police Raj” he
said. Therefore, the Court must draw boundaries upon these police powers
so as to avoid breach of constitutional freedoms. While it could not be said
that all domiciliary visits were unreasonable (see para 31), still while inter-
preting them, one had to keep the character and antecedents of the person
who was under watch as also the objects and limitations under which the
surveillance could be made. The right to privacy could be restricted on the
basis of compelling public interest. The Learned Judge noticed that unlike
non-statutory regulations in Kharak Singh, here Regulation 856 was “law”
(being a piece of subordinate legislation) and hence it could not be said in
this case that Article 21 was violated for lack of legislative sanction. The law
was very much there in the form of these Regulations. Regulations 853(1)
and 857 prescribed a procedure that was “reasonable”. So far as Regulation
856 was concerned, it only imposed reasonable restrictions within Article
19(5) and there was, even otherwise, a compelling State interest. Regula-
tions 853(1) and 857 referred to a class of persons who were suspected as
being habitual criminals, while Regulation 857 classified persons who could
reasonably be held to have criminal tendencies. Further Regulation 855 em-
powered surveillance only of persons against whom reasonable materials
existed for the purpose of inducing an opinion that they show a determina-
tion to lead a life of crime. The Court thus read down the Regulations and
upheld them for the above reasons.
39. We have referred in detail to the reasons given by Mathew, J. in Go-
bind to show that, the right to privacy has been implied in Articles 19(1) (a)
and (d) and Article 21; that, the right is not absolute and that any State in-
trusion can be a reasonable restriction only if it has reasonable basis or rea-
sonable materials to support it.
40. A two-Judge Bench in R. Rajagopal v. State of T.N. held the right of pri-
vacy to be implicit in the right to life and liberty guaranteed to the citizens
of India by Article 21. “It is the right to be let alone.” Every citizen has a
right to safeguard the privacy of his own. However, in the case of a matter
being part of public records, including court records, the right of privacy
cannot be claimed. The right to privacy has since been widely accepted as
implied in our Constitution, in other cases, namely, People’s Union for Civil

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