India’s Supreme Court Puts Liberty and Freedom First, and Above All But Some Grey Areas Remain

Written by Teesta Setalvad | Published on: September 9, 2017
There are moments when institutions do a democracy proud. And one such moment was about two weeks ago, August 24 when a 9 Judge bench of India’s Supreme Court ruled on the right to privacy. The verdict was unequivocal and unanimous: privacy is a fundamental right but that it is an integral part of the right to liberty, are the inherent rights of Man, born with him, not granted by statute (even the Constitution) and hence cannot be suspended or taken away. This settles –in significant measure -- jurisprudence on the question that had been hanging fire since the Emergency (1975-1977).

Moments of high drama laced this drama that unfolded before the Supreme Court and can be realised on a reading of the judgement delivered by Justice Dr. DY Chandrachud, one of the nine judges who sat on the Privacy Bench who authored the lead 266 page judgement on behalf of chief justice Jagdish Singh Kehar, Justices R.K. Agrawal, S. Abdul Nazeer and himself. Son of a former chief justice of India, YC Chandrachud who had delivered the infamous ADM Jabalpur judgement from the exalted benches of the same court, in 2017, he overruled his father’s judgement. Justices YC Chandrachud and Bhagwati had, through this widely criticised judgement upheld the suspension of the right to life by a Presidential Order (Article 359 of the Indian Constitution) and legitimised the suspension of freedoms by Indira Gandhi during the Emergency. In a swift and meticulously argued reversal, Chandrachud (junior) set this controversial and much criticised 1976 verdict aside.

Democracy and freedoms are preserved, most often by the lone, dissenting voice. So it was in 1976 with the dissenting ruling of Justice HR Khanna who emphatically held that the suspension of the right to move any Court for the enforcement of the right under Article 21, upon a Proclamation of Emergency, would not affect the basic right to life and liberty. It is of more than some solace that when the Modi regime vehemently opposed the question, arguing that privacy is not a fundamental right, the higher judiciary was unanimous and held firm. Protecting the individual’s rights and basic freedoms.

The lone dissenting judge in 1976, Justice HR Khanna had then held,
 “I am of the opinion that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilized societies governed by the rule of law. Many modern Constitutions incorporate certain fundamental rights, including the one relating to personal freedom. According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness…”[1]

 What this means and underlines is more than significant. Even if Article 21 had not been outlined in the Indian Constitution, in a civilised society governed by the rule of law, it would not and is not permissible for the State to deprive a person of his life and liberty without the authority of the law:
“Even in the absence of Article 21 in the Constitution, the State has
got no power to deprive a person of his life or liberty without the
authority of law. This is the essential postulate and basic
assumption of the rule of law and not of men in all civilised nations.
Without such sanctity of life and liberty, the distinction between a
lawless society and one governed by laws would cease to have any
meaning. The principle that no one shall be deprived of his life or
liberty without the authority of law is rooted in the consideration that
life and liberty are priceless possessions which cannot be made the
plaything of individual whim and caprice and that any act which has
the effect of tampering with life and liberty must receive sustenance
from and sanction of the laws of the land. Article 21 incorporates an
essential aspect of that principle and makes it part of the
fundamental rights guaranteed in Part III of the Constitution. It does
not, however, follow from the above that if Article 21 had not been
drafted and inserted in Part III, in that event it would have been
permissible for the State to deprive a person of his life or liberty
without the authority of law. No case has been cited before us to
show that before the coming into force of the Constitution or in
countries under rule of law where there is no provision
corresponding to Article 21, a claim was ever sustained by the
courts that the State can deprive a person of his life or liberty without
the authority of law…”
The argument being that, therefore, the remedy for the enforcement of the right to life or liberty would not stand suspended even if the right to enforce Article 21 is suspended, like it was by an Emergency Proclamation Order by the President confirmed by a majoritarian Parliament:
“Recognition as fundamental right of one aspect of the pre-Constitutional
right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had
not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from Article 359…”
Justice Khanna had then held that while wide powers to order preventive detention are vested in the State, there is no antithesis between the power to detain and power of the Court to examine the legality of such a detention:
“The impact upon the individual of the massive and comprehensive
powers of preventive detention with which the administrative
officers are armed has to be cushioned with legal safeguards
against arbitrary deprivation of personal liberty if the premises of
the rule of law is not to lose its content and become
In 1973, six judges had buckled and seven had stood up for fundamental freedoms. By a narrow 7-6 verdic, the majority judgments of seven judges held that Parliament had no power to alter “the basic structure of the Constitution”. The other six other judges, headed by Justice A.N. Ray, ruled the opposite, justifying the possible imposition of an Emergency that suspended basic freedoms. In a rather crudely obvious response, the Indira Gandhi-led Congress government , getting to know of the judgments in advance, overlooking the seniority of three judges who had been part of the majority verdict — Justices J.M. Shelat, K.S. Hegde and A.N. Grover — for the appointment of the next CJI. Justice A.N. Ray became Chief Justice of India, the next day.
Three years later, on April 28, 1976, a mortal blow to fundamental freedoms was delivered by four judges of the Supreme Court of India, with a sole and lone dissenting voice. The infamous ADM Jabalpur case was the verdict. At the helm of affairs was Chief Justice A.N. Ray –elevated almost as a reward – and Justice YN Chandrachud (among others) who’s son, now on the Supreme Court bench overturned this historic verdict.
This infamous verdict of the Supreme Court has cast a cloud on the independence of India’s judiciary since it was pronounced. Today, in 2017, when it stands resoundingly struck down, that too under an aggressively majoritarian regime, it is somberly salutary moment for Indian democracy.
What had ADM Jabalpur done? Adjudicating on a case of Habeas Corpus Case the cOurt arrived at this conclusion:
"In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations."

The Presidential Order referred to was the one issued during Emergency declaring that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency are in force.

At the crux of the 2017 reversal of ADM Jabalpur (1976) is the unequivocal assertion by all nine judges that the rights to freedom and liberty are primordial rights. These were recognised in the Kesavananda Bharati judgement (1975), that led to the supersession of judges and Declaration of Emergency. Calling the judgements rendered by all four judges constituting the majority in ADM Jabalpur as “seriously flawed” the Supreme Court of India has now, in 2017, again (in Para 119 of the Privacy Judgement) re-iterated that “Life and personal liberty are inalienable to human existence.... 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 civilized 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 372 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.”

What the Supreme court has done is reverse a judicial blow to basic freedoms and liberty.

There will be deeper implications of this Privacy Verdict that will now play out as citizens invoke the 9-Judge Bench Judgement to ensure that in all aspects of life, surveillance by the state, sexual preference and the criminalisation of homosexuality, the right to eat food (including beef)  of one’s choice and these rights are, hopefully, actualised.

In addition to the 266 page lead judgement of four judges, there are separate judgements (all worth a read): Justice Chelameswar has delivered a 44 page verdict, Justice SA Bobde a 40 page one, Justice Rohinton F. Nariman a judgement of 122 pages, Justice Akshay Manohar Sapre 24 pages and finally Justice Sanjay Kishan Kaul, a verdict of 47 pages.

What this really means is, that if a particular regime, be it the majoritarian ones of the past or the one that hovers over all Indians since May 2014 particularly, consigns basic freedoms of life and liberty to the dustbin and fixes curbs on these through Presidential Order and Constitutional Amendments that do not pass the liberty test, they stand overruled.

The core of the 9-Judge verdict interprets the fundamental freedoms of the Constitution upholding that the Constitution was made for conscientious dissenters as much as for ruling parties, for the able and the disabled, for the LGBT community and others, for political minorities even more than for majorities. It gives us the rule of law as the birthright of every citizen in a democracy. Privacy is now entrenched as inalienable right. Each of these will now stand tested in individual cases against this monumental jurisprudence. The right to privacy can be curtailed in public interest only by a law which can be once again tested for its constitutional validity. Privacy, the court holds, is about the reservation of a “private space to be left alone”. Recognising the full amplitude of the need for privacy, the court holds that “the ability of an individual to make choices lies at the core human personality”.

What has already been widely discussed and rightly so, is the impact of the Privacy judgement on a deleterious interpretation of Article 377 of the code of Criminal Procedure and the Data Mining Policy of the Government.

In 2009, a division bench of the Delhi High Court in the famed Naz Foundation judgement had by its widely acclaimed ruling de-criminalised homosexuality. In Suresh Kumar Koushal v/s Naz Foundation (2013), the Supreme Court had overturned the judgement. The specific issue of interpreting Section 377 of the CRPC is now pending before a wider bench.  In its 2009 ruling, the Delhi High Court had held that

“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue
to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not
to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd
Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”

Despite the rather embarrassing verdict of the Supreme Court of India in 2013, now the Court had held (in the Privacy Judgement) that privacy is about the reservation of a “private space to be left alone”.  “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”

The Judiciary has remained fractured in its view and while this 9-judge Verdict offers clarity and solace, it mayn’t solve the attendant confusions. Today, we have several (smaller) benches of India’s Supreme Court adjudicating on crucial Constitutional issues, even when the Constitution and the Court’s own judgements have cautioned that only a five member bench should look at questions Constitutional.  This means that a not so well-adjudged or balanced view also becomes an interpretation of fundamental rights and the law. When it was laid down that at least five judges  should speak on matters Constitutional, an irrefutable logic backed this argument: sound judicial mind or jurisprudence can be espoused only when there are enough minds –enough balance –on any given fundamental question.

Look at the contradictions otherwise. In its historic judgment in `Justice Puttaswamy vs Union of India' (2012), the Supreme Court held that privacy is a fundamental right. In doing so, it also removed the basis for its decision in `Koushal' (2013), which had upheld the constitutionality of Section 377 of the Indian Penal Code (IPC). Still, until this specific issue is adjudicated by a larger bench, the confusions stay.

So while we draw solace from these pronouncements, key questions will remain. Will other Courts follow the judgement as laid down here?
Within a democracy –a concept that often gets collapsed to electoral dynamics of vote blocks and numbers -- there are many groups, or “discrete and insular minorities“ who remain excluded from the everyday exchanges and compromises of democratic politics, which tend to prioritise political expediency over protection of rights. Justice Kennedy's said in his majority opinion in the US Supreme Court (the case was on gay marriage and the case the well-cited Oberg fell vs Hodges ruling) summed up this sticklish phenomenon: “The nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” To balance this a wider and more considered view –expressed in a larger bench of judges – is a must.

And, key to all questions, will Parliament act? In 2016, the Lok Sabha voted against Shashi Tharoor's bill to decriminalise homosexuality. Governed as we are by a worldview that is not simply majoritarian but one that believes liberties and freedoms are anathema to individuals and their freedoms to live, express and exist, it is unlikely that this Indian Parliament is likely to take the conclusions of the Privacy Judgement to its logical conclusion.

(A version of this article has also been published in People’s Democracy; references to ‘Him’ are Gender neutral)