In a unanimous verdict, a nine-judge Constitution Bench of the Supreme Court declared on August 24 that right to privacy is intrinsic to the right to life and liberty and is an inherent part of the Fundamental Rights enshrined in the Constitution. The court further held that privacy is a natural right that inheres in human beings because they are human. The state does not bestow natural rights on citizens. Natural rights like privacy exist equally in all individuals, irrespective of class, strata, gender or orientation. The court dealt with the question of right to privacy in six separate judgments covering 547 pages. The judgment in effect overrules the 1962 judgment (six judges) in case of Kharak Singh and that of 1954 judgment (eight judges) in case of MP Sharma. This historic judgment also holds right to privacy not to be an absolute right and, therefore, could be subjected to relevant reasonable restrictions.
Four judges, including the Chief Justice JS Kehar wrote one common judgment whereas five others wrote their own separate judgments. The judgment also comments on the two-judge Bench judgment of the court in upholding the Constitutional validity of Section 377 of IPC. The court observes that one’s sexual orientation is undoubtedly an attribute of privacy. The right to privacy cannot be denied even if a small fraction of the population is affected. Commenting on the matter further, the nine-member Bench terms the judgment on Section 377 of IPC as one that is “completely flawed”. It is, therefore, expected that the two-judge Bench judgment is most likely to be overruled in subsequent adjudication of pending cases relating to Section 377.
The judgment of the nine-judge Bench has many unique and landmark features. It goes into analysing the Constitution to trace the contents of dignity of life and the obligation of the state to help its citizens lead a dignified life. The judgment emphasises the value of dissent and tolerance apart from rights of minorities, thereby clearing the way for possible overruling of the court’s hitherto existing verdict relating to Section 377 of IPC. The judgment boldly delineates the limits of the state’s intervention in the life of citizens. The Bench has, however, been alive to the challenges thrown up by technology in the digital age and recognises the balance to be maintained between the right to privacy and right of the state to impose reasonable restrictions on it for legitimate aims such as national security, prevention and investigation of crimes and, more notably, distribution of welfare resources. The Bench says, “like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for curtailment of the right must also be subject to Constitutional safeguards.”
Another interesting feature of this judgment is the overruling of a 41-year-old judgment to which Chief Justice YV Chandrachud, father of Justice DY Chandrachud, is a party. The son Chandrachun unequivocally states, “The judgments rendered by all the four judges constituting the majority in ADM, Jabalpur, are seriously flawed. ADM, Jabalpur must be and is accordingly overruled.” Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right apart from it, nor can there be a fatuous assumption that is adopting the Constitution and the people of India surrendered the most precious aspect of the human persona, namely the right to life, liberty and freedom to the state on whose mercy these rights would depend. Forty-one years later, the court is more alive and alert to protect the inalienable and inviolable of right to life, liberty and freedom.
Justice RF Nariman demolishes the argument of the Attorney General that right to privacy is an “elitist construct”. Equally unsustainable has been the argument of the Union of India that privacy is a vague concept and a vague concept cannot be made a fundamental right.
Responding to the current debate whether intolerance is on the increase, the nine-judge Bench says that in a democracy that tolerance should be the government’s forte and “who are governed are entitled to question those who govern”. The judgment extensively quotes from the writings of Nobel laureate Amartya Sen. The court goes on to hold “Criticism and critique lie at the core of democratic governance. Tolerance of dissent is equally a cherished value. In deciding a case of such significant dimensions, the court must factor in the criticisms voiced both domestically and internationally”. The court has been critical of the scenario in which the government is putting the right to privacy and right to life. The court said, “Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part-III (Fundamental Rights chapter) and embodying an aspiration for achieving socio-economic rights in Part-IV (Directive Principles of State policy). The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised throughout in history to wreak the most egregious violation of human rights.” Above all, the court states, “It must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their Constitutional duties including the provision of socioeconomic welfare benefits.” Justice Chandrachud further holds, “The power to scrutinise and to reason enables the citizens of a democratic polity to make informed decisions of basic issues which govern their rights. The theory that civil and political rights are subservient to socioeconomic rights has been urged in the past and has been categorically rejected in the course of Constitutional adjudication by this court. The civil and political rights and the socioeconomic rights, according to the apex court, do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socioeconomic rights do not postulate the subversion of political freedom,” says Justice Chandrachud.
The senior counsel for the petitioner, Soli Sorabjee, has called the unanimous verdict of the nine-judge Bench a “very progressive judgment”. In the coming months, the Bench of five judges, maybe, of three judges, will hear specific cases of alleged violation of right to privacy.
But for the youth power of the country, which dominates the electoral system, the judgment is a god-sent gift. It should the task before the youth power to find ways and means of challenging illegal restrictions on and intrusions into privacy. Each of the privacy cases should be debated and discussed by the youth power with the rest of the society.
This should enable the youth power to become an influential factor in streamlining the future course of action in a vital subject as right to privacy, which pervades the realm of dignity, which, by virtue of the Preamble, becomes a basic structure of the Constitution. History is being made. The largest number must participate in it to make it more meaningful for the society at large. This cannot be confined to sectarian considerations.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha.
(jayantdas@hotmail.com)