Today's Editorial

07 September 2017

A supreme gift


Source: By Manini Chatterjee: The Telegraph


A public discourse increasingly coarsened by shrill hyperbole, words such as " landmark", " path- breaking" and " historic" sound almost trite, bereft of any real meaning. Yet, each of these adjectives, singly and together, cannot quite describe the enormous significance and magnificent sweep of the Supreme Court verdict delivered on August 24 declaring individual privacy a fundamental right.

The unanimous verdict of the nine- judge bench of the apex court, overruling two previous judgments which had held that the right to privacy is not protected by the Constitution of India, declared 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 simple one- line assertion comes at the end of a 547 page verdict that comprises six separate but concurring judgments.

The first and the most substantial one running into 266 pages is written by the judge, D. Y. Chandrachud, on behalf of the chief justice, J. S. Khehar, and the judges R. K. Agarwal, S. Abdul Nazeer, and himself. Separate judgments of varying lengths were given by the judges J. Chelameswar, S. A. Bobde, R. F. Nariman, Abhay Mohan Sapre and Sanjay Kishan Kaul.

Read as a whole, the verdict is truly remarkable on several counts: for the grand sweep of arguments that the honourable judges draw upon from previous legal cases both in India and abroad, from history and from philosophy to prove that privacy lies in the very essence of being human; for the clarity and lucidity with which it explains the real meaning and import of the rights outlined in the Indian Constitution; and most of all for the profound humanity and compassion it displays in upholding the liberty and dignity of each and every Indian citizen.

The verdict is studded with gems of wisdom that are, at one level, an affirmation of values that are universal, eternal, timeless. Take, for instance, D. Y. Chandrachud's assertion that "The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.

Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of his life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution". A. M. Sapre's concurring judgment too drew a link between privacy and dignity. “In my considered opinion," he wrote, ‘right to privacy of any individual' is essentially a natural right, which inheres in every human being by birth…

One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilized society governed by rule of law always recognizes in every human being and is under obligation to recognize such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed." But it would be fair to say that more than the numerous evocations of timeless values, the real import of the August 24 verdict lies in its timeliness. At a time when majoritarian impulses threaten the lives and the livelihoods, the freedoms and the liberties, the privacy and the dignity of whole multitudes of Indians, the unanimous view taken by the nine wise men of the Supreme Court comes as a flood of sunshine, a gust of fresh air to lift the darkness and the claustrophobia threatening to smother this land.

Although the judges made no direct mention of contemporary politics, J. Chelameswar's words seemed to speak to our times. He wrote: "I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. 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." More significantly, the verdict also underlined a truth that is increasingly forgotten — that the fundamental rights enshrined in India's Constitution cannot be eroded by governments, no matter how strong or popular they may happen to be. This point was made, in different contexts, in the judgments penned by both R. F. Nariman and D. Y. Chandrachud.

Rejecting the government's argument that since the right to privacy was covered by many statutory laws (that is, laws passed by legislatures), it was unnecessary to make it a fundamental right, Nariman noted: "Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes… 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 (emphasis in the original). This is all the more so when a particular fundamental right likes privacy of the individual is an "inalienable" right which inheres in the individual because he is a human being.

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."D. Y. Chandrachud echoed the sentiment while rejecting the reasoning behind an earlier Supreme Court judgment in a case involving the rights of the LGBT community.

He wrote: "The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection." These warnings against the "disdain of majorities" and the assurance that certain rights cannot be subject to the "shifting sands of majority governments" are profoundly significant because they come at a time when the idea of democracy has increasingly become synonymous with legislative majorities. The Bharatiya Janata Party and the Rashtriya Swayamsevak Sangh with its numerous affiliates are the foremost champions of a "majoritarian" State and society, but they are by no means the only political entities to conflate legislative majority with moral legitimacy.

In state after state, parties that win a big majority think they have the "popular mandate" to trample on the rights of those who do not agree with them. The tyranny of " popular mandates" (even when no ruling party has ever won even 50 per cent of the votes) and the savage assault on individual rights in the name of " mass sentiment" have become the new normal to such an extent that many believe that to criticize an elected government for its acts of omission and commission is an illegitimate act in itself.

The nine- bench verdict goes much beyond the issue of privacy to remind us forcefully that each of us, as individuals and citizens, have inalienable rights that cannot be suppressed by popular regimes or powerful states or passionate collectives. The Constitution is our shield and our sword. "Liberty and freedom," the verdict notes, “is values which are intrinsic to our constitutional order. But they also have an instrumental value in creating conditions in which socio- economic rights can be achieved. India has no iron curtain.

Our society prospers in the shadow of its drapes which let in sunshine and reflect a multitude of hues based on language, religion, culture and ideologies." By expanding the scope of our freedoms, by reminding us of the foundational values that this nation rests on, the Supreme Court has given us a 70th birthday gift that We, the People of India must cherish and be grateful for…


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