When momentous things happen, they usually take a while to sink in. As the nation absorbs the Supreme Court verdict declaring privacy as a fundamental right, its implications would be slow to manifest themselves. I will however venture out on the proverbial limb to say this is probably the finest judgment in the history of the court.
A singular bane of seven decades of governance (if it could be called that) has been the tendency of governments, to quote Ronald Reagan, to run people's lives. Brute parliamentary majorities muzzled their way through excesses of the worst kind, reaching a nadir with Indira Gandhi's Emergency, where even the SC was found to buckle courtesy its judgment in the habeas corpus case (ADM Jabalpur), upholding the suspension of fundamental rights, including the right to life. The court's evolution of PIL jurisprudence in subsequent decades helped neutralise the inequity somewhat, as did the compromised coalition governments that followed. However, the juggernaut of the 2014 electoral victory led to misgivings about executive excess, borne out by President's Rule in Arunachal and Uttarakhand, the National Judicial Appointments Commission that sought to control judicial appointments, and the money bill route to pass laws. With cow and JNU added to the mix, the governance picture was not a pretty one. The time was ripe for a churning. Who knew it would come from the offshoot of a petition challenging the Aadhaar project filed by a former HC judge?
There are several notable facts in the judgment now referred to as Justice K S Puttaswamy vs Union of India, prominent among which is that it was unanimous, despite having nine minds attending to it. This itself is reassuring for the court, that its fate is in the hands of those who have no compunction in declaring what is right. Consider also that the Chief Justice of India chose not to pen a piece of his own, leaving his colleagues to author judgments uninfluenced by his views.
With six separate judgments, there was always a fear of ambiguity in determining what was actually said. There is no equivocation here. "Privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded," says Justice Chandrachud, with whom Justices Khehar, Agrawal and Nazeer concurred. "Fundamental rights," says Justice Chelameswar, "are the only constitutional firewall to prevent State's interference with those core freedoms constituting liberty of a human being." Justice Bobde opines that "privacy is inextricably bound up with all exercises of human liberty", Justice Nariman declares that "the inalienable right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution", Justice Sapre believes that privacy is a right that "is inseparable and inalienable from the human being" and Justice Kaul extols it as an "important, natural, primordial right". There is no cleavage, no reservation, no doubt. Privacy is a core fundamental right.
Not only was this the single largest bench of the SC ever constituted to determine the existence of a fundamental right, but a composite reading shows the bonhomie and unity on the bench in coming to a common conclusion. References to each other's verdicts are rare in large bench decisions, but here, the judges have clearly had the advantage of perusing each other's drafts well in advance, minimising the overlaps and offering an uncluttered view to the reader. One trusts that this healthy trend will continue.
Distributed merrily across the 547 pages are several nuggets that would rival an Easter egg hunt. Interpreting the right to life and liberty (Article 21), the court attended to two roadblocks (as Justice Nariman refers to it). By a near-unanimous decision, the court at long last has overruled the dreadful ADM Jabalpur decision of the Emergency, which would finally bring peace to the late brave Justice H R Khanna, the sole dissenting judge.
What would come as deliverance for the LGBTQ community however is the express overruling by the majority of the offensive passages of the Naz Foundation case and a declaration that sexual orientation is an inextricable part of the fundamental right to privacy, thereby paving the path to restore the celebrated Delhi High Court judgment on Section 377.
The verdict is also remarkable for its wonderful prose, the myriad resources from across the globe, the illustrations and historical allusions — all of which have carved a clear path for coming generations in understanding and preserving our most basic rights.
In his dystopian graphic novel V for Vendetta, the legendary Alan Moore puts the following in the mouth of his protagonist, V: "People shouldn't be afraid of their government. Governments should be afraid of their people." With this judgment, the people have been empowered again.
By Gopal Sankaranarayanan | Aug 27, 2017
The writer is an SC advocate who appeared for Centre for Civil Society