A brave new world of individual rights

The recent, nine judge judgment of the Supreme Court in Justice Puttaswamy’s case, has by a 9-0 margin, finally settled the debate on whether the right to privacy is an established part of the fundamental right to life and liberty in this country. Overruling two earlier decisions of eight and six judges, the court has now held that: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

This question had been referred to a larger bench of nine judges on August 11, 2015. This is because, at a hearing before three judges, Attorney General Mukul Rohatgi had contended that because of judgments of the “Court in MP Sharma & Others v. Satish Chandra & Others , and Kharak Singh v. State of UP & Others , (decided by eight and six judges, respectively), the legal position regarding the existence of the fundamental right to privacy is doubtful.” Rohatgi therefore contended that the “right to privacy” cannot be considered as deemed to be accepted by subsequent smaller benches, as that “resulted in a jurisprudentially impermissible divergence of judicial opinions”.

The three judges recorded their “opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in MP Sharma and Kharak Singh are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches”.

The Aadhaar-evangelising government had bet against any chief justice in the immediate future getting together nine judges to hear at length a constitutional matter of these proportions. It is a tribute to outgoing Chief Justice JS Khehar, that in his last two months in office, he did just that. Upon reopening of the Supreme Court, on July 18, 2017, a five-judge bench began hearing the matter and immediately on the first day, referred the matter to nine judges. On the next day hearings commenced before the nine judges, which had to deliver a judgment before CJI Kehar’s retirement on August 25, 2017. Given the tight schedules, many lawyers expected a short judgment on law, affirming the fundamental right to privacy. A massive 547 page judgment, densely packed has been delivered, which in sheer breadth is breathtaking.

In ruling on the existence of a fundamental right to privacy, the court and its judges have swept away decades of detritus and bad law. The observations in the judgment now mean that criminalising consensual homosexual acts will be unconstitutional. The contours of privacy will extend to various spheres like choice of food and drink. A patient’s right to refuse treatment is also recognised by some judgments as coming within the protection of privacy rights. Privacy has been held to extend from the cradle to the grave. Breaches of privacy, even by governments, must bear justification that will withstand judicial scrutiny.

The court holds that an “invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” The court simply means, that unless there is compelling state interest in breaching a person’s privacy, to the barest minimum extent required, the state’s breach will not be justified. Hence compulsory imposition of an all encompassing Aadhaar, that provides a 24x7, 360 degree view to anyone who can match Aadhaar details over multiple databases, is unlikely to be upheld.

Much beyond privacy and Aadhaar, the judgment is likely to provide a great source of constitutional interpretation. Justice Chellameshwar’s formulation that provisions purportedly conferring power on the state are in fact limitations on the state power to infringe on the liberty of citizens, will provide a fresh range of arguments to constitutional lawyers who have been frustrated by the concept of seemingly reasonable restrictions, being used to eat up fundamental rights themselves.

About half of the 547-page judgment has been written by Justice Dhananjay Chandrachud for himself and Justices Khehar, Agarwal and Nazeer. He has recognised that “the right to privacy is an element of human dignity”. Perhaps even more crucially, Justice Chandrachud (joined by all the others on the bench) has explicitly overruled the court’s earlier judgment in ADM Jabalpur v Shivkant Shukla , to which his father Justice YV Chandrachud was a party. The judgment is also remarkable for its stinging criticism of the court’s view in Suresh Koushal v Naz Foundation which had upheld the validity of Section 377 of the IPC. However, it refrains from explicitly overruling the judgment as the challenge to Section 377 is already pending before a different bench.

Justice Rohinton Nariman has rejected the Union’s argument that the right to privacy is not a fundamental right in a developing country where people do not have access to food, shelter and other resources. He holds that the right to privacy is available both to the rich and the poor alike. He goes on to hold “Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect. The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.” This judgment is probably the second most significant judgment in Indian constitutional history after the 13-judge judgment of Keshavananda Bharati in 1973, which gave us the basic structure doctrine. Ninety -year-old Justice Puttaswamy will as a litigant have contributed more to citizens’ freedoms, than all his efforts as a judge. Freedom has won. Mindless authoritarianism stands repelled by the sentinels.

The writer is a senior advocate in the Supreme Court