The month of August marks a momentous event in the story of our nationhood as we celebrate our independence from colonial rule. The very basis was a constitutional choice, which civil rights lawyer K G Kannabiran put it as the “termination of imposed suzerainty”. Two years ago, this sentiment seemed to be achieved with the historic decision of the Supreme Court in the Puttaswamy Privacy case, in which nine judges unanimously affirmed the fundamental right to privacy. This newspaper reported the apex court’s decision on the front page with the electric headline — Privacy Supreme.
Though two years is not a fair measure of time in the life of a constitutional judgment, it does provide perspective on early beginnings that may set its future course. Constitutional law builds on precedent, which was an inherent recognition within the privacy judgment. Each of the six concurring opinions comprising it emphasised that the privacy doctrine would develop on a case-by-case basis. Within its large jurisprudential expanse, concepts of personal autonomy, dignity and liberty provided fertility to future adjudication. Almost immediately, constitutional lawyers seized on it, clutching copies of the judgment as they entered courtrooms. Its centrality was felt in Navtej Singh Johar v. Union of India, which watered down the unconscionable criminalisation of consensual homosexual activity. This built in part upon the autonomy doctrine of personal choice from the privacy doctrine. Similar victories were felt in cases of Joseph Shine v. Union of India which decriminalised adultery and Shafin Jahan v. Ashokan K M that restrained the courts from dictating the choice of an adult woman to choose her partner. Many other cases made extensive reference to the judgment.
There were considerable setbacks too. Disappointment was felt most acutely within the Puttaswamy Aadhaar case. The privacy reference arose in the midst of arguments on the constitutionality of Aadhaar, but in many ways the Supreme Court failed in application of the privacy doctrine to it. It was captured most eloquently in the searing dissent of Justice D Y Chandrachud, who repeatedly cautioned against the centralisation of personal data as a tool for surveillance and authoritarianism. This may seem incongruous with the larger development of privacy to India, but to many practising lawyers such a setback did not elicit shock.
Two specific, structural explanations in the nature of constitutional adjudication may explain this incongruity, which forms part of the hidden curriculum of the Supreme Court. The first is the composition of the court, which changes from case to case and hence, carries a margin of discretion. Judges often disagree amongst themselves, which becomes more varied with the flexibility provided by constitutional doctrine. The second is of a more troubling nature and concerns the investment by the political executive in the continuation of a programme or policy irrespective of its impact on fundamental rights. Here the independence of the judiciary, not only in form but in substance, becomes vital. For it to resist the soothing sirens of reward or gentle whispers of consequence, the institutional strength of the adjudicatory body becomes central. Let us honestly recognise that phantoms today confront the Supreme Court in instances where constitutional adjudication pits citizens against the government. This has an impact on the development of the privacy doctrine in varied discretionary choices, from the procedure for listing to the choice of hearings that subsequently flow into more obvious markers of reasoning and reliefs contained within court judgments.
The answers to this conundrum are found to an extent in the privacy judgment. In the opinions of Justices Chandrachud, Rohinton Nariman and Sanjay Kaul, who expressly overruled the abhorrent decision of ADM Jabalpur by which the Supreme Court had once affirmed the suspension of fundamental rights during the Emergency. They recognised the dissent of Justice H R Khanna in the ADM Jabalpur that natural rights such as privacy are not recognised but protected by the Constitution, hence are ever-persisting, everlasting.
But Justice Khanna’s dissent was not merely an act in finely crafted judicial reasoning, but an act of principled courage at the time of Emergency and at grave personal cost. His lifelong labour towards being the Chief Justice of India was disturbed when he was superseded by the political executive. Timing matters and in more ways than one: Justice delayed is justice denied. Today, the privacy doctrine may only offer cold comfort as the autonomy, dignity and liberty of many Indians is violated in deep and pervasive ways. The Supreme Court has occasion to correct many of these moral and constitutional wrongs. For the privacy judgment to fulfil its true promise, it needs to go beyond spirited dissents to firm, binding judgments that keeps the political executive within clear, limited constitutional boundaries.
(The writer is a lawyer and the executive director of the Internet Freedom Foundation)