The third week of August 2017 will be remembered in the history of civil liberties in India. A five-judge Bench of the Supreme Court on Tuesday raised freedom of religion to the highest pedestal of absolute right; on Thursday, the court refreshed the memory of April 1973 when a 13-judge Bench had propounded the doctrine of basic structure in Kesavananda Bharati vs State Of Kerala And Anr, restricting the power of Parliament to amend the Constitution.
There were 22 petitioners in all; the lead petitioner who challenged Aadhaar is a 92-year-old former judge of Karnataka High Court. The Supreme Court had talked about privacy in as many as 30 previous judgments — but the Government of India asserted in this case that privacy is not a fundamental right; this, the government said, had been decided in two judgments by an eight-judge and a six-judge Bench. Accordingly, the matter was first referred to a five-judge Bench and then, to this nine-judge Bench.
Thursday’s privacy judgment will also be remembered for celebrating dissenting opinions. The dissenting opinions of Justice S Fazal Ali in Gopalan (1950), Justice K Subbarao in Kharak Singh (1963), and Justice H R Khanna in the infamous ADM Jabalpur case (1976) were acknowledged and appreciated.
Chandrachud: Massive victory for liberty, rights, choice; blow to majoritarianism
The 574-page judgment, consisting of six opinions — the lead opinion authored by Justice D Y Chandrachud on behalf of himself, Chief Justice of India J S Khehar, Justice R K Agrawal and Justice S Abdul Nazeer; and five separate opinions from Justices J Chelameswar, S A Bobde, Rohinton F Nariman, Abhay M Sapre and Sanjay Kishan Kaul — rejected all arguments of the central government, overruled the court’s judgments in M P Sharma (1954) and Kharak Singh, and approved the decisions of its smaller Benches, which had found the right to privacy implicit in the right to life and personal liberty.
M P Sharma, Justice Chandrachud said, did not decide the issue of right to privacy under Articles 19 and 21, and primarily concerned itself with Article 20(3), i.e., right against self-incrimination. The judges noted that Kharak Singh, in fact, struck down domiciliary night visits as unauthorised intrusion, which violated the idea of ordered liberty by relying on the privacy doctrine itself. The government’s argument that privacy is just a sociological — and not jural — concept because of its vague and abstract nature, was demolished.
In consonance with human rights jurisprudence, most judges held that liberty includes natural rights that are inalienable — they are not a gift from the state, but inhere in every member of the human race. The court observed that human dignity is so fundamental that it permeates the core of rights under the Fundamental Rights chapter of the Constitution. Justice Chandrachud held that dignity is the core that unites the fundamental rights — because fundamental rights try to achieve for each individual the dignity of existence. He also held that no citizen has the right to waive fundamental rights — the implication being that the giving of information does not mean the citizen has waived his right to privacy.
The judgment of Justice Chandrachud has taken individual rights to a new height. The right to privacy recognises the autonomy of the individual — as privacy is intrinsic in freedom and liberty, he has held. Privacy is the ultimate expression of the sanctity of the individual. Justice Chandrachud has overruled as “seriously flawed” the judgment in ADM Jabalpur, where a four-judge majority that included his father, Justice Y V Chandrachud, held that during an Emergency, when the right to life is under suspension, citizens have no remedy against illegal detention. The rights to life and personal liberty are inalienable to human existence, and existed even before Constitution, he held — by this recognition, the Constitution does not become the sole repository of the right to liberty. This right, according to Justice Chandrachud, is a pre-Constitution right that continued as valid law under Article 372. This is indeed a unique formulation.
In a serious blow to majoritarianism, Justice Chandrachud held that the guarantee of constitutional rights does not depend upon the exercise being favourably regarded by a majority of the population. The test of popular acceptance does not furnish a basis to disregard the right to liberty, he said. Diverse and insular minorities, he observed, face the grave danger of discrimination for no reason other than their views/opinions. He almost struck down Section 377 IPC when he held that sexual orientation is implicit in the right of choice, which is a facet of the right to privacy.
Rejecting the government’s stand that the Constituent Assembly consciously excluded privacy from the fundamental rights, Justice Chandrachud held the framers did not reject privacy as an integral part of liberty. He listed as many as 15 fundamental rights that the judiciary has created over the years. The judicial recognition of rights is not an amendment of the Constitution, but a legitimate exercise of the court’s functions, he said.
On the government’s argument that privacy is already a statutory right, and there is no need to declare it a fundamental right, Justice Chandrachud said fundamental rights have a unique purpose — to put such rights beyond the pale of majoritarian legislature. Privacy, he said, protects heterogeneity and pluralism, and the diversity of our cultures.
On the Narendra Modi government’s argument that privacy matters just for the elite, the court held that the poor need it too. Widening the ambit of freedom of religion, it held that the ability to choose a religion and the decision to express it or keep it secret, is part of one’s right to privacy. Anti-conversion laws that require prior permission of the state may now be challenged as being violative of privacy.
Chelameswar: Constitution’s silences are equally important
In his 44-page powerful concurring opinion, Justice Chelameswar not only agreed with Justice Chandrachud and Justice Nariman, but also added several significant concepts to civil liberty jurisprudence. Man is not the creature of the state, and life and liberty are not guaranteed by the Constitution, he said. The mere absence of privacy in the text of the Constitution does not mean anything; the silence of the Constitution cannot be used to deny rights — that, Justice Chelameswar said, will be an affront to the wisdom of the framers of the Constitution. The text of the Constitution, he said, is only the primary source of understanding it; its silences are equally important. The right to privacy consists of repose, sanctuary and intimate decisions, he said. The fundamental rights are not a series of isolated points, but a rational continuum of the legal concept of liberty. He also extended the liberties under Article 19 to non-citizens.
Justice Chelameswar also held that people have the freedom to choose their dress and appearances such as the keeping of hair or wearing of turbans. These choices, which include political beliefs, are not only part of freedom of religion, but also an integral part of privacy, he said. This will surely impact the right to keep a beard and the right to wear to hijab.
Bobde: Privacy is both a common law right and a fundamental right
In his 40-page opinion, Justice Bobde answered the government’s argument that privacy was a common law right and not a fundamental right — it is both, he held; the content is identical, only the incidence of burden and the forum of enforcement differs. He quoted religious texts such as the Sunna of the Prophet and the Holy Bible to demonstrate that privacy has always been recognised as important. Even the Arthashastra recognised it, he said. Privacy, Justice Bobde observed, is the necessary condition precedent for the enjoyment of freedom under Part III of the Constitution. Like the other judges, he too held that state recognition of the right to privacy is not necessary.
Nariman: Human rights include rights under international covenants
In his 122-page judgment, Justice Nariman held that there was no broad ratio in the two judgments under review. Quoting the National Human Rights Commission Act, he said the definition of human rights in India includes human rights recognised under international covenants. He, too, refused to accept the Union’s argument that welfare schemes are more important for the masses than the right to privacy. He said even tax laws need to protect privacy, and authorities cannot divulge personal details. Mere statutory recognition of privacy is not sufficient, and recognition of privacy as a fundamental right is necessary as citizens enjoy fundamental rights despite the government they may elect. In interpreting the Constitution, courts can read more rights, Justice Nariman said. He too expressly overruled ADM Jabalpur.
Sapre: Unity and integrity of the nation is impossible without privacy
In his brief 24-page judgment, Justice Sapre held that unity and integrity of the nation cannot survive unless the dignity of every individual citizen is guaranteed through privacy. The three concepts of liberty, equality and fraternity are to be read together. Each and every right could not be written in the Constitution, and courts may read additional rights, Justice Sapre said.
Kaul: Privacy part of original intent of framers of the Constitution
In his 47-page judgment, Justice Kaul boldly acknowledged the new threats from the intrusive state in an age of digital footprints, and quoted from George Orwell’s 1984. The big brother is very much here, he said. The right to privacy was very much part of the original intent of the framers of the Constitution, and privacy is key to freedom of thought and the right to think, Justice Kaul said.