The reports of ongoing arguments in the Supreme Court on the right to privacy in the context of the Aadhaar case in the press raise larger and far-reaching questions for our consideration. Usha Ramanathan has written extensively on the reasons why Aadhaar is both a bad law and bad policy, pointing out tirelessly in various forums why it must be resisted. Without elaborating on the points already being debated since this idea was first sold to the previous government, I will attempt to flag some larger concerns. These are questions related not merely to the executive’s reduction of the Constitution or the court’s interpretation of it, but importantly to the citizen’s relationship to the Constitution of India. This last aspect, although key to the very framing of the Constitution, is rarely remembered or invoked in its full meaning.
It is useful, as always, to begin at the very beginning – the Preamble: “We, the people of India… do hereby adopt, enact and give to ourselves this constitution.” An important part of what we give to ourselves is the affirmation of “liberty of thought, expression, belief, faith and worship” to all citizens and the resolve “to promote among them all “fraternity assuring the dignity of the individual…” The very construction of the Preamble makes it clear to us that the Constitution does not confer rights on the citizen. It affirms the rights. To take a very simple example, the Constitution can by no stretch be said to confer the right to life. It protects the inherent right to life of all persons from derogation: “Article 21 – No person shall be deprived of his life or personal liberty except according to procedure established by law.” Herein lies a crucial aspect of our understanding of the Constitution. To argue that the right to life is an inherent right affirmed by the Constitution means that life defined in its most expansive and its broadest and most enabling construction must be equally available to all.
On this point, the fact that we are at a point where jurisprudence, politics and citizen engagement with the state and law has evolved and grown over a period of six decades since 1950 cannot suddenly be wished away. In a 1954 decision, interestingly, the only reference points available to the eight-judge bench were from British colonial jurisprudence and early American jurisprudence when critical questions of racial equality, universal suffrage and gender equality, importantly, were far from settled in law. The jurisprudence in these aspects has grown enormously since then – and we have in place today, the framing of constitutions in newer countries using the Indian Constitution and its counter-colonial spirit as an example and reference point. We also have the development of international law and the creative deployment of international standards in Indian constitutional interpretation by the Supreme Court of India, to strengthen extant interpretations of fundamental rights. Even as a strategy, therefore, to suggest a return to a 1954 decision on the mere technicality of the size of the bench is a counter-historical and reductionist move.
Quite apart from this is the fact that the 1954 case alluded to is specifically on whether search and seizure constitutes interference with right to property (Article 19(1)(f) of the Constitution, since repealed) after the registration of a First Information Report and whether it violates the constitutional guarantee of the right against self-incrimination.
The judgment does not hold that there is no right to privacy – what it says is that powers of search and seizure under criminal procedure have not been restrained with recourse to the right to privacy argument even in the US courts, where this discussion has arisen. And the judgment is very specific in its reference to testimonial compulsion as it applies to persons against whom a First Information Rreport has been recorded, explicitly leaving out of consideration its applicability to other persons in other cases.
To turn now to the subject of the debate, namely, the right to privacy: we have encountered this at many turns in our travels through courts — women survivors of domestic violence have always maintained that the right to privacy in conjugal relations is inherent till such time that violence/abuse enters the relationship, where the limitation must operate and the family opens up to public scrutiny in that case. At this point, courts have held that bringing the Constitution into the family is like bringing a bull into a china shop, with a general principle used to defeat an individual claim. On the contrary, when gay rights activists protested the criminalisation of consensual sexual relations, the right to privacy argument was defeated in its entirety by the Supreme Court.
The right to “confidentiality” is asserted again in cases of non-disclosure of information, assets (and in some notable cases, even relationship) by those who hold public office. Now, we have an argument by the government in favour of state surveillance on all citizens as a general prerogative of government, which is what the interrogation of the right to privacy as a fundamental right entails. It is important to note that this is a huge departure from the 1954 case where a constitutional guarantee of privacy was not accepted as the reason to restrain search and seizure in criminal cases where FIRs had been lodged.
This takes us unavoidably to an exploration of the nature of fundamental rights. Perhaps, we need a re-examination of this critical question at this juncture. It is not unreasonable to argue that if the fundamental right to life protects us from its denial by the state, the inherent right to life is implicit in Article 21.
If we as persons in independent India did not have the right to life, there would be no reason to protect it under the Constitution. As Professor Upendra Baxi pertinently observes in a 2010 essay, “the Indian Constitution describes Part III of fundamental rights as rights to freedom – a right to state and law-free spaces. Yet, Parliament may by law reasonably regulate or limit these rights and this may not be done without the reasoned cooperation of the Supreme Court.” Taking our cue from here, the rights to freedom, as a right to state and law-free spaces, constitute the substantive and inherent right to privacy under the Constitution.
While there can for various reasons be clear and specific restraints placed on this right under specific statutes, as evident in the 1954 case, on a plain reading, there is no constitutional ground for its denial altogether. We are free under the Constitution, to enjoy the entire range of freedoms including importantly, the right to life with dignity, for which the right to privacy is indispensable.
The writer is a professor and the Director of Council for Social Development, Hyderabad.