The privacy ruling

This is not an attempt to gild the lily, as it were. The implication of the unanimous ruling of a nine-member bench of the Supreme Court on August 24 will seep in only over time as the judgments are closely analysed. A judgment on behalf of Chief Justice Jagdish Singh Khehar, and Justices R.K. Agarwal, S. Abdul Nazeer and D.Y. Chandrachud was delivered by Dr Justice D.Y. Chandrachud. Justices J. Chelameswar, S.A. Bobde, Abhay Manohar Sapre, Rohinton Fali Nariman and Sanjay Kishan Kaul delivered separate judgments. They unanimously passed an order which said: “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.”

Article 21 says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The implication is plain. The right to privacy is covered not only by Article 21, a fundamental right, it is also “a part of the freedoms guaranteed by Part III of the Constitution” which embodies all the fundamental rights. The right to privacy is, therefore, the foundation on which all the fundamental rights rest. Take it away from the citizen and he is reduced to a non-person.

There are two aspects that have not received the notice they deserve. One is that the court has buried, beyond exhumation, the doctrine, so dear to Richard Nixon and his tribe, that the Constitution should be read strictly according to the “original intention” of its framers. They were known as the “strict Constructionists”, conservatives to the core. To its credit, the Supreme Court of India never for once accepted this view.

The other aspect is that the judgment knocks for a six any law that prevents a citizen from eating beef. Even the Supreme Court will not be able to retrace its steps because all the judges define in liberal terms the contours of the right to privacy in the widest terms. More, five of the nine—a clear majority—explicitly and in so many words uphold a person’s right to eat whatever he wishes to eat . Unlike Article 19, which confers fundamental rights on citizens (such as the right to freedom of speech and expression), Article 21 applies to all persons. An American or a European will be entitled to demand his beef steak; an Indonesian, his rendang; and an Indian, his nihari and kebabs, authentic only when made with beef. Mutton is used under compulsion or by ones who know no better. The legendary Tunday Kebabs of Lucknow can now be had freely. It is surely time that the oppressive laws on eating beef are tested on the anvil of this ruling.

Justice Chandrachud said: “The development of the jurisprudence on the right to privacy in the United States of America shows that even though there is no explicit mention of the word ‘privacy’ in the Constitution, the courts of the country have not only recognised the right to privacy under various Amendments of the Constitution but also progressively extended the ambit of protection under the right to privacy. In its early years, the focus was on property and protection of physical spaces that would be considered private such as an individual’s home. This ‘trespass doctrine’ became irrelevant when it was held that what is protected under the right to privacy is ‘people, not places’. The ‘reasonable expectation of privacy’ test has been relied on subsequently by various other jurisdictions while developing the right to privacy. Having located the right to privacy in the ‘person’, American jurisprudence on the right to privacy has developed to shield various private aspects of a person’s life from interference by the state—such as conscience, education, personal information, communications and conversations, sexuality, marriage, procreation, contraception, individual beliefs, thoughts and emotions, political and other social groups. Various judgments of the court have also analysed technological developments which have made surveillance more pervasive and affecting citizens’ privacy.” It is unthinkable that any court outside India would deliver the kind of judgments on cow slaughter that the Supreme Court has over the years.

Right to be let alone

In keeping with these observations, Justice Chandrachud said: “What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality.…Privacy enables the individual to retain the autonomy of the body and mind…

“Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat , the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty.” He remarked meaningfully: “Privacy protects heterogeneity and recognises the plurality and diversity of our culture.”

Three other judges concurred in this. So did Justice Chelameswar, who said, as explicitly: “I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.”

This makes a majority on this explicit ruling. Justice Katju’s warning is significant: “The majoritarian concept does not apply to constitutional rights and the courts are often called upon to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.” He was, of course, aware of the majoritarian laws on eating beef.

One is appalled that a top law officer of the BJP regime said that no new rights can be added. Justice Chandrachud listed 15 rights and Justice Bobde 11 which the Supreme Court had spelt out in the past from the text of the Constitution. But it is the outlook and ignorance which shock. The Americans have been through all this. Time and again Chief Justice Marshall would remind fellow justices that “it is a Constitution that we are expounding”, a basic law “intended to endure for all ages to come” ( McCulloch vs. Maryland (1819) 4 Wharton 316 ).

Hence the necessity for adapting its meaning to “various crises in human affairs”. In 1955, nearly a century and a half after Justice Marshall’s reminder, Chief Justice Earl Warren (whom many regard as one of the greatest Chief Justices after Marshall) sagely predicted that “when the generation of 1980 receives from us the Bill of Rights, the document will not have exactly the same meaning it had when we received it from our fathers” (Earl Warren, The Law and the Future,Fortune , Volume 106, 1955, page 126).

Implicit guarantees

The right to privacy, one can confidently predict, will acquire fresh nuances when the inroads made by the data computer are challenged. None should underestimate the Supreme Court’s resourcefulness in meeting the new challenges to freedom, nor its ingenuity in applying the Fundamental Rights.

While the Burger Court retreated somewhat from the frontiers delineated by the Warren Court, in some respects it widened them. In the Richmond Newspapers case of 1980, the court disapproved of a criminal trial being closed to the public in the absence of an “overriding interest” which required it. The significance of the court’s ruling lies in the fact that it spelled out for the public a right to attend trials from the First Amendment’s guarantee of free speech and free press, as distinct from the Sixth Amendment guarantee of “a public trial” to an accused.

The court declared that “ notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, thecourt has acknowledged that certain unarticulated rights are implicit in enumerated guarantees . For example, the rights of association and of privacy, the right to be presumed innocent and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet, these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognised by the court as indispensable to the enjoyment of rights explicitly defined.”

In the famous birth control case of 1965, Griswold vsConnecticut , a Connecticut statute made the use of contraceptives a criminal offence. Estelle T. Griswold, executive director of the Planned Parenthood League of Connecticut, and another officer of the League were arrested, tried and convicted of the offence. Each was fined $100. The Supreme Court set aside the conviction.

The doctrine that it enunciated transcended in importance the facts of the case. It was the high noon of the Warren Court. Delivering the opinion, Justice Douglas said: “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance… Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’. The Fifth Amendment in its self-incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.’”

The right to privacy in the bedroom was not created by the Constitution. It belonged to the people and was “retained” by them. “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.”

All the nine judges of the Supreme Court agreed that the Constitution, though 67 years old, has not passed the age of childbearing. It can yield new fruits. Justice Chandrachud put it extremely well:

“Would this court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.” On this also the court was unanimous.