The Supreme Court by its decision on Right to Privacy not only restated the liberties and values outlined in the Preamble, but also corrected some past judicial wrongs

The Supreme Court of India in Justice KS Puttaswamy (RETD) vs Union of India and Ors WP (C) 494/2012 has declared that Article 21 of the Indian Constitution includes within it a Right to Privacy.

This nine-judge unanimous decision came after the question was referred to it by a three-judge bench hearing the AADHAR matter. The Union Government had taken the stance that Right to Privacy was a common law right protected by statute, and, earlier judgments of the court hadn't recognised it as a Fundamental Right.

But this judgment now clearly settles that position of law and clarifies that the Right to Privacy can only be infringed where there is a compelling state interest to do so: Just as is the case with other fundamental rights. But some background may be helpful in understanding how this came amount.

Article 21 of India's Constitution says: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The original debate begins with the word "procedure according to law". In the first major Article 21 case AK Gopalan vs The State Of Madras (AIR 1950 SC 27), Gopalan was detained under a preventive detention law.

He moved the court saying that his detention was unlawful as it violated his right to personal liberty. The court held that the word used in Article 21 just meant procedural due process and since the preventive detention law under which Gopalan was detained was a valid law, Gopalan's detention was lawful even though that law may have violated some of his other Fundamental Rights such has his Right to Freedom of Movement under Article 19, or, the detention was arbitrary under Article 14.

The reasoning that came out of the case was that Fundamental Rights were silos in themselves and were not interconnected, and constituted independent articles. This doctrine is commonly known as "procedural due process".

This was the doctrine that was in vogue when the famous case of Additional District Magistrate, Jabalpur vs SS Shukla (1976 AIR SC 1,207) was decided as well. That case will be discussed in detail further below. However, in 1977 Maneka Gandhi had her passport impounded.

She wrote to the regional passport officer (RPO) asking for reasons why her passport was impounded and the RPO declined to give her those reasons citing public interest. She filed a writ petition in the Supreme Court saying this breached her Fundamental Rights.

In Maneka Gandhi vs the Union of India (1978 AIR SC 597), the apex court held that the "procedure" under Article 21 had to be fair, just and reasonable, and would have to be also tested with Article 14 (equality) and 19 (the freedoms) thereby ushering in the era of "substantive due process".

With substantive due process, Article 21 began expanding and by incorporation, the term "personal liberty" began to include a wide variety of things such as the right to health, the right to compensation, the right to a hearing, the right to a speedy trial and other such rights having been pronounced by Indian courts over the years.

Last weeks' privacy decision finally allowed for a nine-judge bench to have a clear discussion on how the law has evolved over the years concerning the interpretation of Article 21 especially, and, in doing so, allowed the Supreme Court to finally formally overrule a gross stain on the history of the court. The case of Additional District Magistrate, Jabalpur vs SS Shukla (1976 AIR SC 1,207).

The Emergency in India had resulted in not a suspension of Fundamental Rights. At least as far as the law was concerned, the Constitution doesn't allow for a suspension of Fundamental Rights. Only for a suspension of the right to move the court for their enforcement.

The President of India, during the Emergency, made such a proclamation and many people were detained under various laws. Some of them moved high courts seeking a writ of habeas corpus. The Government said, since the right to move courts for the enforcement of Article 21 is suspended, the petitions were not maintainable.

Three high courts upheld the preliminary objection. A few others did not. They said that while that was the case, it was still open to the petitioners to challenge the validity of the order suspending their right to move court and admitted the petitions. These cases went on appeal before the Supreme Court in Additional District Magistrate, Jabalpur. The petitioners in this case also made one important contention.

They said that while the enforcement of Article 21 rights may be suspended, their right to personal liberty, didn't just flow from Article 21, they had it anyway by virtue of being human beings and even if Article 21 didn't exist, the State couldn't just take it away.

The court reasoned that there could be no review of the presidential orders without reviewing the detention as that was the nature of a writ of habeas corpus. It also reasoned that when the Constitution was enacted, there was an implicit surrender, whereby all pre-existing rights had been surrendered and incorporated into the Constitution, and apart from the Fundamental Rights, there weren't any other rights. Since the petitioners couldn't review their detention without the enforcement of these Fundamental Rights, they remained locked up.

Justice Khanna famously dissented and since, as a result, he was passed over for Chief Justice of India, the judgment has been viewed as a stain on the legacy of the court for many years. The ratio discendi (rationale behind the judgment) that all rights under our Constitution are a positive creation of law rather than merely recognised greatly increases the power of the State to do what it likes with them.

After the Emergency, thanks to Maneka Gandhi's case, the ratio in Additional District Magistrate, Jabalpur was one that was weaker over the years, at least with respect to the main issue of the right to move court during an Emergency-like situation. But in last weeks Right to Privacy case, the judgment of Additional District Magistrate, Jabalpur was finally overruled on doctrinal grounds so far as it concerns rights. The court holding at Paragraph 119 (majority opinion), said:

"The judgments rendered by all the four judges constituting the majority in Additional District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law.

The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law.

"Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights.

"The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article of the Constitution.

"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 in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual.

"The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the rule of law."

Going on to hold at Paragraph 122 (Majority Opinion), the court added:

"In IR Coelho vs State of Tamil Nadu (214), this court took the view that Additional District Magistrate, Jabalpur has been impliedly overruled by various subsequent decisions:

“During Emergency, the Fundamental Rights were read even more restrictively as interpreted by the majority in Additional District Magistrate, Jabalpur vs Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur [(1976) 2 SCC 521] about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions."

"We now expressly do so."

Thus, finally wiping the stain from the otherwise liberal history of the court. In the same breath, the nine-judge bench proceeded to load the detergent to wash away another major stain on the history of the Supreme Court, the decision in Koushal vs Naz Foundation [(2014) 1 SCC 1] which upheld the constitutional validity of Section 377 of the Indian Penal Code of 1860. The court in Kaushal had reasoned that the reliance on the fact that LGBT persons constituted a "minuscule minority" and the reliance on "foreign judgments by the Delhi High Court" as reasons for setting aside the Delhi High Court's judgment was not sound. Going on to hold at Paragraph 126 (Majority Opinion), the nine-judge bench said:

"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution"

And at 127 (Majority Opinion), it said:

"The view in Koushal (case) that the high court had erroneously relied upon international precedents 'in its anxiety to protect the so-called rights of LGBT persons' is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be 'so-called rights'. The expression 'so-called' seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination."

However, since Koushal is currently pending a challenge before a larger bench of the Supreme Court, the court left the Constitutionality to be decided by them, therefore Section 377 is still a good law in India till that bench formally delivers its verdict.

The biggest highlight of last week's judgment, however, would be the refutation of the government's reasoning that the Right to Privacy was an elitist right that would be used to destroy the welfare schemes for a majority of the population. The court has dealt with it and in the opinion of the author, showed the government the writing on the constitutional wall.

This is a nation that is about the individual and that individual includes the poor. The poor person, as well as the rich, have as much at stake when it comes to their constitutional rights. In the words of the Supreme Court at Paragraph 154 (Majority Opinion), it read:

"The Attorney-General argued before us that the Right to Privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the Right to Privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society is unsustainable. This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio- economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. Above all, 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 in the provision of socio-economic welfare benefits. The power to scrutinise and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this court."

Also at 157 (Majority Opinion), it said:

"We need also emphasise the lack of substance in the submission that privacy is a privilege for the few. Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilisation. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals. "

Overall, last week's decision was a great leap forward in clarifying what has been India's constitutional jurisprudence for over the last few decades, its restatement by a nine-judge bench will allow for a well-guided disposal of other cases. It is a restatement of the liberties and values outlined in the Preamble. The Supreme Court by this decision has also unwritten some past judicial wrongs and has also set in motion the wheels to unwritten some future ones.