Judgments delivered by Indian courts invariably record the arguments of counsel for the parties to the case. In the Privacy case (Justice K S Puttaswamy), decided by the Supreme Court on August 24, 2017, the judgment of Justice Rohinton Nariman has (helpfully for the public) recorded the arguments in paragraphs 6 to 10. Let me quote from paragraph 6 of that judgment:
“6. Appearing on behalf of the Union of India, Shri K K Venugopal, learned Attorney General (AG) of India, has argued that the conclusions arrived at in the 8-Judge Bench and the 5-Judge Bench decisions should not be disturbed as they are supported by the fact that the founding fathers expressly rejected the right to privacy being made part of the fundamental rights chapter of the Constitution…”
In paragraphs 7, 8, 9 and 10, it was noted that the counsel for the states of Madhya Pradesh, Maharashtra, Gujarat and Haryana adopted the arguments of the AG and added their own reasons as well: concept of privacy was inherently vague, subjective, inchoate, unsound, etc.
It does not require deductive logic to conclude that the Central government and BJP-ruled states took a common position that was decided upon by the BJP’s leadership: that right to privacy was not, and should not be declared, a fundamental right.
The Verdict and the Spin
In the end, the Supreme Court, in a unanimous verdict (9-0), rejected these arguments. The Court held that privacy was a sound concept, that right to privacy was a fundamental right, and that the two earlier judgments were wrong and hence overruled. It was a comprehensive rejection of the arguments of the Central government and BJP-ruled state governments.
After the verdict was delivered, the BJP gave it a spin. The Central government, through its Minister of Law, no less, claimed that the Court had accepted the government’s stand and the government welcomed the judgment! The nine honourable judges who heard the case would have blanched. Mr Ravi Shankar Prasad deserves an award for bravery or, at least, a place in the Indian cricket team!
The player on the government’s team who emerged with credibility was Mr Mukul Rohatgi, the former AG. In a candid interview, he said had he still been in office as AG, he would have admitted that the government had lost the case. He also said that, in his opinion, the judgment of the Court was wrong.
Exploring ‘Dark Matter’
Declaring a right not explicitly listed in Part III of the Constitution as a fundamental right is not unprecedented. The judgment of Justice D Y Chandrachud listed the precedents:
* the right to go abroad;
* the right against solitary confinement;
* the right of prisoners against various fetters;
* the right to legal aid;
* the right to speedy trial;
* the right against handcuffing;
* the right against custodial violence;
* the right against public hanging;
* the right to doctor’s assistance at government hospitals;
* the right to shelter;
* the right to a healthy environment;
* the right to compensation for unlawful arrest;
* the right to freedom from torture;
* the right to reputation; and
* the right to earn a livelihood.
Justice J Chelameswar described the exercise as exploring “the Constitution’s dark matter”. Just as it was exposited in Kesavananda Bharati vs State of Kerala that the Constitution had a basic structure which was beyond the power of amendment, in Justice K S Puttaswamy, the Court has discovered another gem — that the right to privacy is an inalienable part of the right to life and personal liberty (Article 21).
Through Lens of Privacy
The implications are far-reaching. Every action of the government that affects a person/citizen must now be examined through the lens of the right to privacy. The immediate candidate for questioning is linking Aadhaar to a number of activities like income-tax return, PAN, bank account, air ticket, school admission, etc. That was not — repeat, not — the original purpose of Aadhaar and is, arguably, an invasion of privacy.
Aadhaar was conceived and implemented (cautiously) to ensure that government benefits and subsidies did not go into the hands of the wrong person as a result of duplication, impersonation or falsification. Cases of ghost students receiving scholarships, bogus muster rolls under MGNREGA, second or multiple subsidised LPG cylinders obtained under duplicate/multiple identities, etc. were common. Insistence on Aadhaar would put an end to the malpractices. However, under the NDA government, Aadhaar has exceeded its original purpose and has been made mandatory for activities that do not involve government benefits or subsidies. The question is, why?
The UIDAI and its claim of data security will come under scrutiny. The NATGRID’s authority and mandate must be reviewed. The powers of search and seizure, telephone tapping, off-site surveillance, etc have to restricted. Section 377, IPC, must be struck down (not just read down). LGBT rights need to be acknowledged. ‘Know Your Customer’, data-collection, data-mining, data-sharing and profiling must be regulated. ‘Right to be Forgotten’ must be made enforceable. Right to die, euthanasia and reproductive rights must be debated.
Justice K S Puttaswamy has enlarged and enriched the freedom that we won in 1947. Today, we will celebrate. Tomorrow, there will be other challenges and those too we shall overcome.