Follow Us:

Restricting restrictions

Sriram Panchu |

The Supreme Court’s judgment in Justice Puttaswamy v Union has placed privacy squarely in the cluster of fundamental rights guaranteed under Part III of the Constitution, terming it as a natural and inalienable right.

It is thus above transient legislatures; any laws they make violating this right will be invalid and governmental action which disrespects such right will be illegal.

The nine-judge Bench, a rarity, was convened on a challenge from the Government in the Aadhaar case filed by Justice Puttaswamy that Indians had no fundamental right to privacy, an astonishing statement coming from an elected government. Over the years, multiple judgments of the Supreme Court have staked out a place for privacy as a fundamental right. The government’s denial rested on two judgments ~ M P Sharma (1954) and Kharak Singh (1964). The former was by eight judges, the latter by six.

They each contained one sentence, almost in passing, to the effect that our Constitution-makers did not recognize privacy as a fundamental right as did the Fourth Amendment in the US. Nevertheless, the Attorney-General’s stand was that these two larger Benches held the field.

In response, Chief Justice Khehar constituted a nine-Judge Bench to reconsider the entire issue.

The government’s strategy had backfired, but the extent of that became clear only when the Court delivered a unanimous verdict, with six powerfullyworded judgments and no discordant notes. Heavy artillery indeed, and what is heartening is that it also took aim at several previous judgments that have blotted India’s constitutional jurisprudence.

Justice D Y Chandrachud authored the lead judgment (subscribed to by the Chief Justice and Justices Agrawal and Nazeer) and has given us a treasure of an essay on liberty, dignity and constitutional freedoms.

Worldwide, there are some judgments which act as lodestars because they speak of human values, provide moorings for protective constitutional philosophies, are profound in wisdom and soar in vision; future judgments often refer back to them for guidance; this is likely to be one such. Some of these classic judgments were born out of the conviction of the lonely dissenter; in this case, happily he has the support of the other judgments, each of one of them as strong, and as well worded.

Usually, a multiplicity of judgments makes it difficult to identify a clear rationale and basis for the decision; here, however, the other judges ~ Justices Chelameswar, Bobde, Nariman, Sapre and Kaul ~ admirably set out their perspectives and made short work of the government’s defences, especially the arguments that privacy is a vague concept, an elitist claim and only a common law right. It is heartening to note that several of these judges are going to man the Court for years.

First, the judges put the single sentence observations in Sharma and Kharak out of the way; they came at a time when the Court followed a line of thinking from 1950 (Gopalan’s case) that fundamental rights of freedom under Article 19 and liberty under Article 21 were straightjacketed and therefore limited; when this was changed in 1970 (Cooper’s case) to the concept of overlapping and thus expanded rights, these judgments could not stand in the way. Then came a formidable doctrinal formulation ~ a) the legal and political philosophers Blackstone, Mill, Austin, Dworkin and Sen; b) jurists including the classic Brandeis definition of privacy as “the right to be left alone”; c) the Preamble to the Indian Constitution; d) a long line of judgments of Indian and foreign courts; e) international conventions and statutes.

The theme woven was the inseparable relationship between protection of life and liberty with dignity, and privacy as an essential element of dignity which enables the individual to retain autonomy of body and mind. The emphasis was on the individual as the focal point of the Constitution.

This may have been sufficient to deal with the issue posed before this Bench, but the lead judgment, using this rare opportunity of numerical strength, trained its guns on two other judgments which have been aberrational pronouncements of the Court. Using the inalienable character of a natural right as a prism and principle, the decision in ADM Shukla was reviewed; this was the Emergency judgment which held that the fundamental right to liberty flowed only from Article 21 of the Constitution; when this was suspended the right was lost.

No, said this Court, the rights of liberty are inherent and an essential part of the human condition; they exist before and irrespective of constitutional recognition and enumeration. The dissenting judgment of Justice Khanna in ADM stood validated, and the judgments of Chief Justice Ray, Beg, Chandrachud and Bhagwati were consigned to the black hole of constitutional law, judgments which ought not to have existed and whose existence is best forgotten.

It is an irony that the warrant for extinction was drawn up by the Chandrachud of the next generation; perhaps he was the best fitted to do so; that judgment stained the otherwise peerless record of the senior Chandrachud, and who was better than the son to remove that stain.

The other judgment on which the crosshairs were trained was Koushal’s case, where the Supreme Court reversed the decision of the Delhi High Court and held that Sec 377 which criminalized homosexuality was not unconstitutional. The declaration now that sexual orientation is an essential attribute of privacy is sufficient to shake the foundations of Koushal; it is under challenge in a review petition, and the Court could have let that proceed without further comment. But its sense of constitutional outrage was too strong, and Kaushal was roundly castigated.

The Bench sitting in that review, much smaller in strength, will find its task much easier to send Koushal to the same black hole. Each of the judges has emphasised that the fundamental right of privacy is subject to reasonable restrictions, and that careful and sensitive balances are required especially for combating terrorism and crime, administration of welfare schemes and encouraging innovation.

The Bench hearing the Aadhaar case will have to strike these balances, as will the judges who grapple with other issues involving privacy, and there will be no shortage of these. Now, however, the restrictions will have to pass strict constitutional tests of necessity, proportionality and procedural fairness. We can only pray that future judges will be champions of restricting restrictions, as much as they are now of declaring rights.

(The writer is Senior Advocate, Madras High Court)