#Privacy – Further Observations on the Puttaswamy v Union of India Case
I have just finished reading all 547 pages of the Justice (Retd) Puttaswamy v Union of India (the Right to Privacy Case) comprising of 6 separate but concurring opinions.
Most of you would know that right to privacy has been held to be a fundamental right, albeit not an absolute one (as none of the fundamental rights are absolute) and amenable to reasonable attenuation to achieve a legitimate state interest – as long as the restriction passes the proportionality test. The key part, I think, is the use by almost all the judges of the concept of human dignity, articulated in the Preamble, to ground the fundamental rights. That is a major constitutional advance in India, even if many times other judges have said this before. This is the first time such a large bench has stated that each of us, as human beings, have an innate dignity of a magnitude that equalizes us and engages us in a collective constitutional project. That the CJI did not use the same concept to undergird his analysis in the Triple Talaq case, but signed onto that as articulated by CJI Chandrachud would be a mystery. That we will have to debate later.
The four fold test, for the attenuation of the fundamental right to privacy, that at least 6 (or was it 7) justices have explicitly signed off on are:
“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;
(iii) The extent of such interference must be proportionate to
the need for such interference;
(iv) There must be procedural guarantees against abuse of such
The judgement refers to a Justice Srikrishna Commission set up by the Government of India to frame the guidelines, norms and rules that would provide the procedural guarantees against abuse of such interference. This would, presumably, be looked into by the 5 judge bench that will decide the constitutional validity of the Aadhar Card Scheme. What the Government proposes, and sets forth as law, and whether it would satisfy the four fold test described in the Right to Privacy Case is something we would have to watch very carefully.
Additionally, the six opinions (that comprise the judgement) provide us with impeccable logical constructs and rich rhetoric, along with a thick ideological cover, to defend ourselves against and also attack the often ill informed and ill tempered trolls who pollute the internet. More importantly, the judgement provides us with the Constitutional rationale for an active role as citizens to stand up and be counted against fascist forces that seek to overrun this country. This would imply the need to educate others, both the elite and the vast masses, of the dangers that the political economy has posed and will continue to pose to the Constitutional project and all that is decent, progressive and vital in this country.
As a word of caution, I will also state that this ought not to rest at the level of mere anti-BJP rhetoric. If we restrict ourselves to that we would have betrayed the spirit of the Constitution and the incredible intellectual and ethical opportunity this decision provides for us. Many other political parties, including the Congress, have at various times attacked the constitutional foundations of this nation. That BJP is the one in power, and has launched, arguably the most potent of assaults on Indian constitutional structures, will obviously merit special attention. But, it cannot be the sole attention.
Irrespective of the party, we need to realize that not hewing closely to this incredibly resilient matrix of ethical and intellectual possibilities – rooted deeply in the collective wisdom (or should that be in the plural) of mankind, both here in India and all over the world – that our Constitution encodes and this judgement reveals, obviously partially but nevertheless powerfully, will kill our project of constructing India as befitting the genius and dignity of our people. All the people.
Over the next few weeks I will try to excavate, within the boundaries of what my modest capacities inscribe, some salient themes and philosophical constructs that this judgement brings to the forefront. Not everything may stand up to careful and critical scrutiny. That is the very nature of the process of constitutional adjudication and its assimilation for fresh rounds of debates. Nevertheless, there is much to cheer about in those 547 pages for now.
I would just note (for now) two features (of the many) that ought to strike anyone who reads all the opinions in this judgement:
1. In no uncertain terms the majority of the judges emphatically declined to be swayed by a fascist submission made by the Union of India: that the poor do not need fundamental rights, and much less a right to privacy as a part of their right to life and liberty. One sentence from the opinion of Justice Dr. Chandrachud says it all:
“The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.”
That is what Mrs. Indira Gandhi, and Sanjay Gandhi said in the mid seventies. And we got ADM Jabalpur, that enunciated a horrifying principle that procedure of law can be any law – good, bad or ugly – to even take away life. The son, Justice Dr. Chandrachud makes amends for the mistake of his father by expressly overruling ADM Jabalpur. I.R. Coelho had noted that ADM Jabalpur had been impliedly repealed, but it is always good to hear a constitutional body make amends.
(On a slightly different note: Justice Dr. Chandrachaud also castigated the judgement by Justice Singhvi in the Kaushal v NAZ Foundation, in as much as Justice Singhvi had erroneously decimated many constitutional principles in his opinion in that decision. Justice Dr. Chandrachud (joined, I think by at least 5 or maybe even 6 judges), using rather delicate judicial language stated that these two judgments ought to be confined to the archives. I think he meant the garbage can. In the Kaushal v Naz Foundation, adhering to principles of judicial discipline, he left the task of deciding the fate of Kaushal v NAZ Foundation to the constitution bench that is actually seized of the matter. To the extent that Kaushal v. NAZ Foundation represented a turn in the discourse – towards the assertion of majoritarianism as the only principle, of vicious assaults on principles of constitutionalism and naked assertion of power to do whatever it takes to perpetuate power and benefits to the cronies (or rather deepening of that) – this move away brought a hope. Albeit very small, because much that ought not to have been done has also been done. Yet, maybe – just maybe we can hope to fight?)
2. (This is an extension of the principles in the judgement – the judges themselves have not spoken about the trolls for Hindu Rashtra). For nearly a decade, and almost viciously, the idea that India and Indians are inheritors of wisdom from both India and abroad has been attacked. Again and again. Ill informed, ignorant but hate filled members of the right have attacked anyone and anything that they did not like, or was beyond the pale of their monotonic representation of what India is, as foreign and hence unworthy of consideration, of suspect moral foundation and also necessarily false.
In asserting that the concept of “human dignity” and hence the content of dignified “life” is informed by wisdom of mankind from all over the world, every one of the judges has emphatically shown the proclivities of the right wing trolls to be what they are: xenophobic. By canvassing, repeatedly and copiously, both Indian case law and case law from abroad, by citing both Indian and foreign authors, and by drawing upon sources such as ancient texts, both Indian and foreign, the nine judges have asserted (implied) that Indian Constitution does not envisage an India as an island that is self contained and adrift from the larger human project – of assuring the dignity of all individuals as the only means to assure fraternity.
For those of you who would want to be warriors for a progressive India, and an India that will continue to sustain the constitutional project reading this judgement – all six opinions – ought to be a categorical imperative. We are where we are today – combating both the steady creep of fascism and a moral abdication of concern for each other and all the others – because we have also failed to sufficiently protect the constitutional values when they were attacked. We also did not protest enough when the corrupt polity attacked our constitutional mechanisms and institutions. This judgement is an indication that the constitutional project still has some life left in it. It will breathe better, survive and thrive only if we fight for it. All that judges of the Supreme Court can do is to articulate the moral imperatives of the Constitution.
We, the people of India, have to give life to those moral imperatives. Protecting the Constitution and its project is our responsibility. As citizens, and as human beings.