Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why they are taken together
Privacy is the clearest example on this syllabus of a right that is in the Universal Declaration but not in the text of Part III. Article 12 of the Declaration provides that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks. Nothing in Part III says that.
These two cases show how the gap was closed: by reading privacy into the personal liberty protected by Article 21, and by using the Declaration to justify the reading.
Kharak Singh v State of Uttar Pradesh (1963)
Facts. The petitioner had been charged in a dacoity case but was released, there being no evidence against him. The police nevertheless opened a history sheet against him and placed him under surveillance as defined in Regulation 236 of the U.P. Police Regulations.
The definition of surveillance matters, because the case turns on which of its limbs was struck down. It comprised: secret picketing of the house or the approaches to the houses of suspects; domiciliary visits at night; periodical enquiries by officers not below the rank of Sub-Inspector into repute, habits, association, income, expenses and occupation; the reporting by constables and chaukidars of movements and absences from home; the verification of movements and absences by means of enquiry slips; and the collection and recording on a history sheet of all information bearing on conduct.
Held. The domiciliary visit is an infringement of the right to privacy and violates the citizen's fundamental right of personal liberty guaranteed under Article 21.
The sentence that made the law. "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". That formula - not expressly declared, but an essential ingredient - is the technique by which unenumerated rights enter Article 21, and it is worth quoting in any answer about the judicial expansion of fundamental rights.
What to be careful about. Kharak Singh did not strike down surveillance as such. It struck at the night visit to the home, which is the most intrusive of the six limbs. An answer that says the case abolished police surveillance is wrong.
PUCL v Union of India (1997)
Facts. A public interest litigation highlighting incidents of telephone tapping. The petitioner challenged the constitutional validity of section 5(2) of the Indian Telegraph Act 1885, and contended in the alternative that the provision should be read down so as to include procedural safeguards which would rule out arbitrariness and prevent indiscriminate telephone tapping.
Held. The Court upheld the privacy rights of individuals, relying on the Universal Declaration.
The two propositions worth carrying away.
On the Declaration. The Court observed that "Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms" as the constitutional protection it was constructing. That phrase, almost in similar terms, is exactly the Kesavananda point applied: the Declaration is not the source of the right, but it shows that the reading being given to Article 21 is the reading the international community gives to the same guarantee.
On the character of modern international law. The Court said that "International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations, International law is more than ever aimed at individuals". This is one of the most useful passages in the whole course, because it states in a judgment the proposition Module 1 states as history: that the subject-matter of international law changed after 1945, from a law between States to a law that reaches the individual.
The alternative remedy point, which is often the real question
Note what the petitioner asked for in the alternative: not that section 5(2) be struck down, but that it be read down to include procedural safeguards. That is the characteristic modern human rights remedy in India and it is worth naming.
A court that strikes down a surveillance power leaves the State with none, which no court wants. A court that upholds it leaves the citizen with nothing. Reading down - keeping the power but attaching to it the safeguards the Constitution requires - is the middle course, and it is the same technique as the guidelines remedy in Vishaka, D.K. Basu and Prem Shankar Shukla. Four cases, one method: the court supplies the procedure the legislature omitted.
How to use them in an exam
A question on the right to privacy should run: privacy is in Article 12 of the Declaration and not in Part III; Kharak Singh held it an essential ingredient of personal liberty and struck at domiciliary visits; PUCL applied it to telephone tapping under section 5(2) of the Telegraph Act and read in procedural safeguards, expressly noting that Article 12 of the Declaration is almost in similar terms.
A question on the influence of the Universal Declaration on Indian law should use PUCL for the passage on international law now being aimed at individuals, and pair it with Kesavananda Bharati on the evidential status of the Declaration.
A problem question about covert State monitoring should be answered by asking, first, whether a law authorises it; second, whether that law lays down a procedure; and third, whether the procedure is just, fair and reasonable in the Maneka Gandhi sense. If the answer to the second or third question is no, the remedy is to read in safeguards rather than to invalidate.