Not an honourable track record

Even while acknowledging the theoretical value of the Supreme Court’s judgment in the right to privacy case, one needs to realise that the euphoria it created can be deceptive because the court’s record in significant battles based on the rights of citizens is far from impressive.

Justice Y.V. Chandrachud. In 1978, two years after the ADM Jabalpur judgment, he was appointed Chief Justice of India.

IN the celebrated judgment on the right to privacy rendered by a nine-judge bench of the Supreme Court this year, Justice D.Y. Chandrachud overruled the opinion rendered by his renowned father, Justice Y.V. Chandrachud, in the ADM Jabalpur case (1976).

In ADM Jabalpur , the question whether the fundamental right to personal liberty under Article 21 of the Constitution could be suspended during the Emergency was answered by the majority on the bench in the affirmative, with a seminal dissent by Justice H.R. Khanna. The majority included Justice Y.V. Chandrachud, who said inter alia that “the right to personal liberty has no hallmark and therefore when the right is put in action, it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era”. Justice Khanna, on the other hand, said that “the right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law” and that “even in the absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life or liberty without the authority of law”.

In the privacy judgment, Justice Y.V. Chandrachud and the then majority are held to be wrong and Justice Khanna, right. The privacy judgment said that “the judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed”. Indisputably, this is a theoretical statement favouring citizens’ freedom.

Doctrinal corrections are easy to make. Telling the executive the constitutional truth during a critical situation is a different matter altogether. A political reading of the privacy judgment would help us understand the political character of not only the judgment but the judiciary as a whole. Also, it helps to trace certain empirical lessons as reflected in several earlier judgments of the court right from the 1950s. The lesson is clear: at times when the court was confronted with testing times for citizens, it interpreted the Constitution in favour of an illiberal state, as it did in ADM Jabalpur . On the other hand, when there was a fundamental political change leading to a “comfortable” situation, the court was willing to correct the “errors” without, however, undoing the mischief. In his emblematic work The Politics of the Judiciary (1977), J.A.G. Griffith shows that behind the actions of judges who are “faced with such (political) situations” there is “a unifying attitude of mind, a political position, which is primarily concerned to protect and conserve certain values and institutions”.

It is therefore profitable to examine the shifting scales of jurisprudence on personal liberty as demonstrated by the Supreme Court in its brief history. When privacy was indirectly addressed in the A.K. Gopalan case (1950), the court had to decide the issue concretely and politically, not just doctrinally. The court decided in favour of state intrusion into individual freedom in A.K.Gopalan, and only years later, in Rustom Cavasjee Cooper (1970), when it caused little or no hurt to the political executive, did it correct the “erroneous” law in A.K.Gopalan .

When confronted with the conceptual aspects of free speech, the apex court was generous enough to underline the free speech theory in Shreya Singhal (2015). When the court struck down Section 66A of the Information Technology Act, apparently, the state did not suffer any immediate or direct political setback. It was a general invalidation of a provision penalising digital communications that essentially worked among citizens (for example, the persons who made the statements and those that were affected by them) rather than between the citizen and the state.

But the question of individual liberty with all its political rigour was placed before the Supreme Court in the bail application the student leader Kanhaiya Kumar filed. Without passing orders, the apex court quickly transmitted the application to the Delhi High Court. Although the Delhi High Court granted him bail at a subsequent point of time, it delivered a judgment with inappropriate rhetoric on patriotism, a totally unwarranted piece of literature in an order on a bail application. In its judgment in Bijoe Emmanuel&Ors vsState of Kerala& Ors (1986), the Supreme Court had endorsed Jehovah’s Witnesses’ refusal to sing the national anthem by invoking India’s “tradition of tolerance”. The same court, however, dictated that the national anthem be sung in cinema theatres, in the present political era of narrow nationalism.

On May 9, 2017, when Justice C.S. Karnan’s contempt case was considered, the court issued a gag order against the media as a whole. Thus, the voice against centralised judicial power was nipped in the bud, which amounted to pre-censorship. More strikingly, even in the post-Emergency period, the court upheld the constitutional validity of draconian laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) (see, for example, Kartar SinghvsState of Punjab (1994)).

The instances when the death penalty is awarded in India are often loaded with political overtones. The legal position is not simply that the death penalty is permissible in the rarest of rare cases, as is commonly understood, but that it can be resorted to only when “other options are unquestionably foreclosed”, which is how the Constitution Bench settled the position in Bachan Singh , in 1980. Still, the top court did not find it difficult to endorse the imposition of capital punishment on Afzal Guru on the basis of mere circumstantial evidence. T.R. Andhyarujina subsequently described it as “an execution most foul” ( The Hindu , February 19, 2013). The American jurist and lawyer Charles Fried asserted that “individuals come first” and “whoever says otherwise is trading in metaphors”. He said that “liberty is individuality made normative”. Thus, when liberty is tested at a concrete individual level, the track record of the court is far from impressive.

Aadhaar case

There is a captivating political paradox in the Aadhaar case. The digital revolution accelerated individual freedom and choice in multiple ways all over the world. As Eric Schmidt and Jared Cohen say in The New Digital Age (2013), the Internet has become “the world’s largest ungoverned space” and is “the largest experiment involving anarchy in history”. But in the Indian context, as regarding Aadhaar, the state is using the same digital revolution to oversee, control, supervise and even digitally annihilate the citizen, if necessary. The modern state is so powerful that it can erase a person’s identity and curtail one’s access to banks, hotels, airports or even one’s own car. Note that in the privacy judgment, strikingly, even while holding that it is a fundamental right, the court has laid down the juridical foundation to validate the Aadhaar Act or similar legislation in future by prescribing the possible grounds for restricting the “fundamental right to privacy”.

Therefore, it follows that, even while acknowledging the theoretical value of the privacy judgment, one needs to realise that the euphoria it created can be deceptive. A cursory look at the Supreme Court’s track record would tempt one to think that significant political battles based on the citizen’s rights should be fought politically rather than legally, for the latter course has its inherent institutional limitations.

Kaleeswaram Raj is a lawyer at the Supreme Court and the Kerala High Court. He is the author of Rethinking Judicial Reforms: Reflections on Indian Legal System (UniversalLaw Publishing,LexisNexis, 2017) .