DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2020-2021

CONSTITUTIONAL LAW – I PROJECT

THE DYNAMIC NATURE OF ARTICLE 21 – A STUDY ON CHANGES IN THE
RIGHT TO PRIVACY

SUBMITTED TO:
DR. ATUL KUMAR TIWARI
ASSOCIATE PROFESSOR
LAW

SUBMITTED BY:
ANSHUMAAN JAISWAL
ENROLMENT NO. – 200101028
SECTION A
B.A. LL.B.(HONS.)
SEMESTER III

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 ACKNOWLEDGEMENT

I would take this opportunity to express my sincere gratitude towards everybody with whose
help this project could have been completed. Firstly, I would like to thank my professor for
the subject of Constitutional Law, Prof.(Dr.) Atul Kumar Tiwari for his help in choosing the
project topic and also for his able guidance throughout the course of research and enhancing
my understanding of the subject matter which helped a lot to complete this project.
I would also like to thank and express my gratitude towards my friends and family for their
invaluable suggestions.

Anshumaan Jaiswal
200101028
Dr. Ram Manohar Lohiya National Law University

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4
ARTICLE 21..............................................................................................................................5
LIFE.........................................................................................................................................5
PERSONAL LIBERTY.................................................................................................................6
THE RIGHT TO PRIVACY......................................................................................................7
POSITION OF RIGHT TO PRIVACY IN UNITED KINGDOM...........................................................7
RIGHT TO PRIVACY IN THE UNITED STATES OF AMERICA.......................................................8
THE RIGHT TO PRIVACY IN INDIA....................................................................................9
SIGNIFICANT CASE LAWS IN EVOLUTION OF THE RIGHT TO PRIVACY...................................10
JUSTICE K.S. PUTTASWAMY (RETD.) AND ANR. V. UNION OF INDIA AND ORS..............12
CONCLUSION........................................................................................................................15
BIBLIOGRAPHY....................................................................................................................16

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 INTRODUCTION

The Constitution of India on 26th of January, 1950 was adopted and made the grundnorm of
the country. The constitution apart from laying down the law of the land and the government
gave every individual a set of inviolable rights the goal for which was to protect their most
basic rights, to ensure the fullest physical, mental and moral development of every citizen;
these set of rights include those basic freedoms and conditions which alone can make life
worth living. These rights are known as the fundamental rights and they are embodied in
Part III, from Article 13 to 32 of the Constitution of India.

Article 21 of the Constitution of India gives the fundamental right of ‘Protection of Life and
Personal Liberty’ and it can be assumed that a right guaranteeing protection of life and
personal liberty would be of paramount importance. As a result, from the very inception of
the concept of fundamental rights in India, Article 21 has been under a lot of judicial scrutiny
and review due to number of landmark cases in the courts of India having interpretation of
Article 21 as one of their prime issues; judicial interpretation of the article thus also has
changed quite a lot from the 1950s to our present world and therefore Article 21 has had a
very dynamic nature due to the number of precedents upon it.

In this project work, I would be studying this very dynamic nature of Article 21 but in context
of a specific right from the plethora of rights bestowed under Article 21, i.e., the Right to
Privacy. I would look at the changes in the status of the Right to Privacy as a right bestowed
under Article 21 by first studying it as an independent concept and its position in the
international sphere. Thereon, I would shift to an India centric approach by looking at its
changing judicial interpretations in a number of precedents given by the courts of India and,
finally I would conclude by stating its current position and also by amplifying its importance
in the current paradigm.

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 ARTICLE 21

The Article 21 of the Constitution of India reads as follows –

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.

The article provides every individual (citizens as well as non-citizens) one of their foremost
fundamental rights which guarantees them protection of their life and liberty from any
arbitrary action of both the legislature and the executive. Thus, by a collective reading of
Article 13 and 21 we can conclude that the state cannot make any law that infringes upon the
right to life and liberty of any individual. However, both the terms, i.e., life and liberty are
very expansive in their meanings and their interpretations cannot be restricted to just their
literal and surface level meanings, they need to interpreted in all their entirety, by reading
them with other rights and in consonance with the current paradigms; a very simple
illustration of this could be the Kerala High Court ruling that access to internet is a right
under Article 21, this would not be the ruling if a similar case had arisen somewhere in the
1970s or 80s, therefore constantly changing judicial interpretation of the article and the scope
of rights embodied in it is very necessary.

From a bare reading of the article, three points of importance can be found, i.e., “life”,
“personal liberty” and “procedure established by law”.

LIFE
The right to life can and is not limited to just taking the life if an individual it has a much
more wider scope attached to it, Field J. in the case of Munn v. Illinois stated, “ By the term
life as used in the American Constitution, something more is meant than mere animal
existence. The inhibition against its deprivation extends to all those limbs and faculites by
which life is enjoyed. The provison equally prohibits the mutilation of the body by the
amputation of an arm or leg or by putting out of an eye or the destruction of nay other organ
of the body through which soul communicates with the external world.” Justice Bhagwati in
the case of Francis Coralie Mullin v. UT of Delhi further expanded upon this and stated, “We
think that the right to life included the right to live wiuth human dignity and all that goes
along with it, namely the bare neccesities of life such as adeqaute nutrition, clothing, shelter
and facilities for reading, writing and expressing oneself in diverse forms, freely moving

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about and mixing and commingling with fellow human beings.” Here it can be noted that
how the two judges widened the scope of the right to life to protection of all limbs and
faculties can be enjoyed and existence more than mere animal existence; Justcie Bhagwati’s
statement is even more elucidatory where he states that the right is to live a life with human
dignity and it also includes within its umbrella the right to all neccesities to enjoy such a life.
The scope of the right to life has been increasing further and now even includes the right to
health, right to livelihood, right to food, right to a clean and healthy environment, right to
shelter and many more.

PERSONAL LIBERTY
The 5 Amendment in the American Constitution provides ‘liberty’ a very wide scope of
th

meaning, it takes in all freedoms that a human being is expected to have and to the full range
of conduct which the individual is free to pursue and not mere freedom from bodily restraint
or detention. However, in the Indian Constitution due to the usage of the term personal liberty
the scope at first was quite limited, this was illustrated in the A.K. Gopalan v. State of
Madras judgement where the bench while delivering the judgement a point which took into
consideration the position adopted by English jurists and they suggested that persona liberty
was limited to freedom from detention and physical restraint.

This position underwent a change in the case of Kharak Singh v. State of U.P. where Justice
Ayyangar while speaking for the majority stated that personal liberty was not limited to
freedom from physical restraint and confinemnet within the bounds of a prison and it was a
compendious term to include within itself varieties of all rights which go to make up the
personal liberties of a person other than those covered within the meaning of Article 19. He
said that an unauthorised intrusion into somebody’s home and the subsequent disturbance
would be violative of Article 21. The court’s position on the right to privacy was also given
in this case and this would be discussed under further heads. A similar position was held in
the Maneka Gandhi v. Union of India case where Jus. Bhagwati said, “The expression
personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which
go to constitute the personal liberty of man and some of them have been raised to status of
distinct fundamental rights. It includes all those innumerable aspects of personal liberty
which it is impossible to ennumerate.

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 THE RIGHT TO PRIVACY

Before understanding what is the right to privacy, it is very important to know the definition
of privacy. Privacy can be found in three spheres, first the spatial sphere which would include
our immediate physical domain, our houses and any other physical private space, second is
the sphere of our decisional autonomy which would include all the choices that an individual
makes for matters which are personal or intimate to them such as their sexual or reproductive
choices, and the third would be control over our information (personal or intimate) which
would include our personal identities and in general all information that could be classified to
be as personal to us.

Therefore, this right to privacy should protect all three aforesaid spheres of an individual
from any unauthorised outside interference or intrusion. The Common Law doctrine by
Edward Coke that states "An Englishman's home is his castle"— demonstrates the common
law's relatively early recognition of the inviolability of the home and the privacy of its
residents. From even earlier theorists like Locke reiterated the primacy of the family and the
home in defining the private sphere and the privacy rights that arise therefrom.

The question now is whether privacy of every individual would be protected from the actions
of the governments? This position differs from state to state however the general position is
that individual privacy must be protected from indiscriminate actions of the state, the
personhood idea which posits the idea that our personhood must remain inviolate and it is our
privacy that guarantees this protection.

The Universal Declaration of Human Rights by the United Nations does not explicitly
mention about the right to privacy but Article 12 of the UDHR which states – “No one shall
be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks” is actually protecting the privacy rights of the citizenry
and thus accords the status of a human right to privacy.

POSITION OF RIGHT TO PRIVACY IN UNITED KINGDOM

The earliest definition of privacy in English law was given by Thomas M. Cooley who
defined privacy as "the right to be left alone". The laws devised in the common law
regarding privacy have been concerned with the issue of informational privacy and not

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physical and spatial privacy. Historically there has been no specific right or tort of privacy
and the right was offered only limited protection through some legislations on data protection
on lines of General Data Protection Regulation and the doctrine of breach of confidence
Article 8.1 of the ECHR provides an explicit right to respect for a private life. The
Convention also requires the judiciary to "have regard" to the Convention in developing the
common law and this was incorporated into the English Law after introduction of the Human
Rights Act, 1998.

However, House of Lords has held in the Wainwright v. Home Office1 case, that claim under
Article 8 of the European Convention on Human Rights (ECHR), (right to privacy and family
life), did not help because the ECHR was merely a standard which applied to whatever was
currently present in the common law. Common law protection was sufficient privacy
protection for the ECHR's purpose. Therefore apart from the Human Right Act, 1998 there is
a freestanding right to privacy in the common law at present.

RIGHT TO PRIVACY IN THE UNITED STATES OF AMERICA

In the United States of America there is no explicit law on the right to privacy neither in the
Constitution nor in the Bill of Rights instead the right has been carved out of various rights,
including the Fourth Amendment, Fourteenth Amendment and the Ninth Amendment. The
seminal text for right to privacy in USA can be traced back to the essay written by Justice
Louis D. Brandeis and Justice Samuel D. Warren on the Right to Privacy, that expands it to
the right to be let alone. Theron, the right has developed steadily by a number of judicial
decisions and precedents.

In Kyollo v. United States2, in 2001, the Supreme Court held that the use of thermal imaging
by the state to ascertain the growth of marijuana in an individual’s house constitutes an
invasion of the right to privacy, and was therefore, held as invalid. Justice Scalia pondered
over the difficulty of distinguishing between intimate and non-intimate activities. In the case
of Riley v. California, in 2014, the search of an individual’s cell phone during a warrantless
arrest was also deemed as an unconstitutional search and seizure of the digital content.
Therefore the right to privacy has been growing rapidly in the US and the scope has been
widened considerably.

1
Wainwright v. Home Office, (2003) UKHL 53
2

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 THE RIGHT TO PRIVACY IN INDIA

From the Ancient times, privacy has been an inherent right mentioned in a multitude of
scriptures, if we look into the concept of privacy then we can trace it to the ancient law of
Dharmashastras and ancient Hindu texts like Hitopadesha. The Dharamasastras of ancient
India and their commentaries expounded the laws of privacy in Indian sub-continent. The
kings were bound to uphold Dharma and to respect the privacy of the citizens. According to
Hitopadesha, certain matters like worship, sex and family matters etc. should be protected
from disclosure. Ancient Indian law givers declared ‘"Sarvas Swe Swe Grihe Raja"
(everyman is a king in his own house). Kautilya in his Arthashastra written around 321-296
B.C. has prescribed a detailed procedure to ensure right to privacy while ministers were
consulted.

During the Constituent Assembly Debates also there was a sub-committee that vehemently
promoted for inclusion of the right to privacy in our Constitution and for it to be accorded a
status of a fundamental rights. Distinguished members like K.M. Munshi, Harman Singh and
Dr. Ambedkar had strongly promoted the inclusion of right to privacy as one of the
fundamental rights and this thought was reflected in Dr. B.R. Ambedkar’s draft advocated for
what was called ‘the right of the people to be secure in their persons, house, papers and
effects against unreasonable searches and seizures shall not be violated and no warrants shall
issue but upon probable cause, supported by oath of affirmation and particularly describing
the place to be searched and the persons or things to be seized’. However this was met with
opposition from members like AK Ayyar and BN Rau who gave reasons that every
conversation or exchange would be elevated to state documents and also stated that it would
be a big hindrance to the process of police investigations; and thus held that privacy should
not be accorded the status of a fundamental right.

But right from the 1950s, the Indian judiciary has been dealing with cases that have has
privacy as one of their issues in some or the other form and have set precedents from time to
time.

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 SIGNIFICANT CASE LAWS IN EVOLUTION OF THE RIGHT TO PRIVACY

(1.) M.P. Sharma & Ors. vs. Satish Chandra and Ors.3
An investigation into a company was ordered under Companies Act, 1913 on the grounds of
embezzlement of funds and shadowing the true state of affairs from the stakeholders.
Accordingly, an FIR was registered in 1953 and an application for a search warrant was
submitted to the District Magistrate, and subsequent searches were conducted. The plaintiff
here filed the case for quashing of the warrants as being violative of Article19(1)(f) and
20(3). It was observed by the court that the power of search and seizure could not be
subjected to the right to privacy as there was no provision in the Constitution of India
analogous to the Fourth Amendment of the US Constitution prohibiting unreasonable
searches and seizures. The court stated, “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 American Fourth Amendment, we have no justification to import
it, into a totally different fundamental right, by some process of strained construction.”

(2.) Kharak Singh v. State of U.P. and Ors.4

Kharak Singh, the Petitioner was released from an investigation of dacoity for lack of
evidence against him, but the U.P. Police opened a ‘history sheet’ against him under Chapter
20 of the U.P. Police Regulations. These Regulations allowed surveillance on individuals
who were habitual criminals or were considered likely to become habitual criminals. The
police conducted surveillance as per Regulation 236 of the U.P. Police Regulations, which
involved secret picketing of Petitioner’s house, nightly domiciliary visits, periodic inquiries
by officers as well as tracking and verification of his movements.

The majority judgement of the court found that the domiciliary visits and history sheeting
was a violation of the plaintiffs personal liberty under Article 21 however on the issue of
whether there was a right to privacy, the court held that the right to privacy is not a
guaranteed right under our Constitution and therefore the attempt to ascertain the movement
of an individual which is merely a manner in which privacy is invaded is not an infringement
of a fundamental right guaranteed under Article 21.

However, the minority judgement of the court stated that “..the right to personal liberty takes
in not only a right to be free from restrictions placed on his movements, but also free from
3
M.P. Sharma & Ors. vs. Satish Chandra and Ors., (1954) 1 SCR 1077
4
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295

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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.”

(3.) Gobind v. State of M.P. and Ors.5

The major issue of the case was0 quite alike to the Kharak Singh case and dealt with whether
Regulations 855 and 856 of the Madhya Pradesh Police Regulations, made by the
Government of Madhya Pradesh under Section 46(2)(c) of the Police Act were violative of
the plaintiffs rights of personal liberty. The regulations were in fact similar to the laws
contested in the Kharak Singh case.

However, the court’s judgement did not deem the regulations as unconstitutional and said
they were on the verge of being unconstitutional. The court said that there was no violation of
the personal liberty as the regulations had the force of law and thus were within the caveat
allowing violation of right to life and liberty under Article 21.

On the issue of whether there was a right to privacy enshrined in the Article 21 of the
Constitution, the judicial approach was that there is an existence of right to privacy in terms
of the different guarantees provided by Part III of the Indian Constitution. However, the
Supreme Court also observed that in the absence of legislative enactment, the right to privacy
will necessarily have to go through a ‘case-by-case development’ because just one single case
will be inadequate to see the exceptions and consequences of right to privacy.

(4.) R. Rajgopal v. State of Tamil Nadu and Ors.6

The Petitioners, editors of a Tamil weekly magazine entitled Nakkheeran, intended to publish
the autobiography of Auto Shankar, a convicted serial killer which reportedly revealed the
prisoner’s connections with several State officials. The Inspector General of Prisons issued a
warning letter to the Petitioners stating that Auto Shankar had not written the autobiography
and if it was published, legal action would be initiated against the Petitioners. The Petitioners
claimed that Auto Shankar wrote his autobiography while confined in jail and had requested
his advocate to publish it in the Petitioners’ magazine and they filed a writ petition before the
Madras High Court to safeguard their freedom to print the autobiography, the petition was
transferred to the Supreme Court.

5
Gobind v. State of M.P. and Ors., (1975) 2 SCC 148
6
R. Rajgopal v. State of Tamil Nadu and Ors., (1994) 6 SCC 632

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The court held that privacy is the right to be let alone and a citizen has the right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. No one can publish anything concerning the above matters
without his consent whether truth wise or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. The court also recognized that there is no separate right to
privacy but it can be supposed to rise from Article 21 from the personal liberty clause, and
needs to be developed on a case-to-case basis.

(5.) People’s Union for Civil Liberties v. Union of India and Ors.7

The petitioners challenged the constitutionality of Section 5(2) of the Indian Telegraph Act,
1885 which allowed the State or Central government to intercept and tap messages if deemed
necessary on grounds such as sovereignty, public order or India’s relations with foreign
nations. It was claimed by the petitioner that this section was violative of the right to privacy
of the individuals.

The Court observed that “the right to hold a telephone conversation in the privacy of one's
home or office without interference can certainly be claimed as ‘right to privacy’” and held
that telephone-tapping would violate Article 21 unless it was permitted under a “procedure
established by law”.

JUSTICE K.S. PUTTASWAMY (RETD.) AND ANR. V. UNION OF INDIA AND ORS .8

This case is the most important regarding the recognition of Right to Privacy in India. A
petition was filed in the Karnataka High Court in relation to the Aadhar project which was
linked to the various welfare schemes to make the process of government welfare services
more easier and also remove false beneficiaries. The petition filed by Jus. Puttaswamy
challenged the constitutionality of the Aadhar Act and Aadhar card scheme, consequently
many other petitions were compiled and presented before the Supreme Court. A three-judge
bench of the court looked over the main issue and after finding the benches in the Kharak
Singh and Gobind case were tried by larger benches the case was laid before a nine-judge
bench headed by the CJ Khehar.

7
People’s Union for Civil Liberties v. Union of India and Ors., (1997) 1 SCC 301
8
Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1

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The major issue before the court was that whether there was a right to privacy inherent in the
constitution and was it a fundamental right under part III of the Constitution.

While the respondents relied their arguments primarily on the verdicts in the cases of Kharak
Singh and Gobind case which stated that the Constitution did not protect any right to privacy
and also brought in the point that the Constituent Assembly did not intend to make it a
fundamental right.

The petitioners major argument was that both of these judgements were based on principles
expounded in the A.K. Gopalan case which was overruled in the Maneka Gandhi case and
also the court in the Maneka Gandhi case had approved the minority opinion of Jus. Subba
Rao in the Kharak Singh case which stated that privacy is a right inherent in Article 21. The
petitioners argued that the Constitution would have to be read in line with the preamble and it
must be kept in mind that right to privacy is a natural as well as internationally recognized
human right.

The court in a unanimous judgement declared that the, “The right to privacy is protected as
an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution.” The crux of the decision spelled out an
expansive interpretation of the right to privacy - it was not a narrow right against physical
invasion, or a derivative right under Article 21, but one that covered the body and mind,
including decisions, choices, information and freedom. Privacy was held to be an overarching
right of Part III of the Constitution which was enforceable and multifaceted.

The bench also declared that privacy is not an absolute right and would be subjected to
reasonable restrictions to protect the interests of the State and any action of the State that
choses to restrict the right would be examined to three tests, these tests are :

 legality, which postulates the existence of law;

 need, defined in terms of a legitimate state aim; and
 proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.
The judgement also laid down that this right to privacy was both a positive and negative
responsibility over the state, i.e., the state not only could not take any unreasonable action
that would violate the privacy of an individual but also it was obligated to protect the right to
privacy of an individual by all necessary measures.

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 CONCLUSION

The Right to Privacy whether be seen from the perspectives of the ancient English Law or the
Hindu scriptures was accorded the status of an inherent natural right and it was duly
recognised by the UDHR and the ECHR as a significant human right. The Constituent

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Assembly while giving the peoples their fundamental rights envisioned a future where these
rights would be of paramount importance and no actions of the state would be in violation of
these rights. However, in my opinion not adding the Right to Privacy as a distinct
fundamental right was a grave mistake on part of the drafters. But that mistake now stands
corrected by the judgement of the Supreme Court in the K.S. Puttaswamy case as it has been
accorded the status of a fundamental right under the domain of the Right to Life and Personal
Liberty embodied in Article 21 of the Constitution.

The question may arise that why was this step so important and why was it necessary to give
privacy the status of a fundamental right? It is so because in this rapidly expanding world as
well as shrinking world, the phenomenon of social media and internet is now a part of the life
of almost every individual and even though it has given us a lot of benefits it has also
exposed us to the dangers of data phishing and snooping. Data can be considered as the
biggest and most important currency in the current paradigm and our individual privacy lies
in the hands of some datacentre in another corner of the world, and our Right to Privacy is the
only shield that would offer us protection in case of any eventuality.

Events like the Pegasus data leak, the Cambridge Analytica scandal and many more have
shown us the ugly face of data snooping and are proof that we are actually in no control of
how and in what way our data would be used. Therefore, a strong and sturdy foundation of
the Right to Privacy must be present and provide an assurance that we would be protected
from the will of any data holding entity and our information would remain secure and
protected.

BIBLIOGRAPHY

 V.N. SHUKLA, CONSTITUTION OF INDIA (Eastern Book Company 2021)

 https://privacylibrary.ccgnlud.org/

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 Virag Gupta, A short history of right to privacy, GOVERNANCE NOW (July 5,
2016), https://www.governancenow.com/gov-next/egov/a-short-history-right-privacy
 Sargam Thapa, The Evolution of Right to Privacy in India, 10 International Journal of
Humanities and Social Science Invention 53, 53-58 (2021),
https://www.ijhssi.org/papers/vol10(2)/Ser-1/J1002015358.pdf
 Ted Rubenfeld, The Right Of Privacy, 102 Harvard Law Review 737 (2021),
https://www.jstor.org/stable/pdf/1341305.pdf
 Wikipedia

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