The silences of the constitution

In his landmark opinion, Justice Chelameswar demolished the argument that right to privacy is not explicitly mentioned in our Constitution

Published: 06th September 2017 04:00 AM  |   Last Updated: 06th September 2017 03:10 AM   |  A+A-

Few judgments change the destiny of nations. The nine-judge unanimous verdict on the right to privacy will surely be such a judgment. Fewer concurring opinions go beyond the main judgment in significance. Justice Chelameswar, who had authored a powerful dissenting opinion in the NJAC case, not only agreed with other judges but took the privacy argument to the highest plane. His concurring judgment is justifiably appreciated.

In drafting a constitution, brevity is considered valuable. Our Constitution is the lengthiest, yet it is silent even on the appointment of the PM. Constitutions control the power of the state. How is it controlled? Citizen’s rights are primarily negative restrictions on the power of the state. If the ambit of these rights is widened, the result would be putting the state in check. As guarantor of citizen’s rights, our apex court has been precisely doing this—expanding the definition of state through a liberal interpretation of the term “other authorities” in Article 12 and through a reading of a number of rights in Article 21. As many as 15 rights not expressly mentioned in the fundamental rights chapter have been so read.

In the privacy case, one of the major arguments of the Centre was—not only is the right to privacy not expressly provided as a fundamental right, it was debated by the framers of the Constitution and dropped. Justice Chelameswar in his remarkable style demolished this argument and stated even the silences of the Constitution are important. He went beyond Justice Chandrachud who held that debates in the Constituent Assembly indicate the framers did not intend to expressly include it under Article 21, but from this we cannot infer that they did not intend to have privacy as a fundamental right.

The legal framework of the Constitution is to be so operated as to be consistent with the prevailing constitutional values and principles of the time. Constitutions must function in a way acceptable to the community—not the majority community but the enlightened citizenry as a whole. The privacy judgment of Justice Chelameswar takes the Constitution as a kind of ‘living tree’ which must adapt and evolve. He rightly said that in the US too, the Fourth Amendment—prohibiting unreasonable searches—in itself is not the sole repository of privacy.

Thus values other than those informing the Fourth Amendment can be grounds for privacy if such values are part of the constitutional framework.He further elaborated on the golden silences of the Constitution when he observed that the “dark matter” of the Constitution are as important as the text. He profitably recalled the historic Kesavananda Bharati case where a 13-judge Bench held that the Parliament, through its power to amend the Constitution, cannot abrogate it. “Basic structure ... is the most outstanding exposition of the ‘dark matter’ and is a part of our Constitution, though there is nothing in the text suggesting that principle,” he said. The textual approach in interpreting the Constitution has been rejected by the  apex court and now, the “living constitutionalist” approach is routinely used where along with the text, other factors too are taken into account, he added.

He clearly stated that India’s apex court has progressively adopted the ‘living constitutionalist interpretation approach’. Does it give too much of latitude to the judges and remove the certainty of the constitutional law? Answering them, he said this approach will not lead to arbitrary exercise of judicial power because adaptability in constitutional interpretation cannot be equated to lack of discipline in judicial reasoning. Moreover, “it is still the text of the Constitution which acquires the requisite interpretative hues.”

There is a need to probe into the silences of the Constitution and ignoring them will be a disrespect to the hard-earned political freedom and aspirations of people’s liberty. The judge boldly declared that the text of enumerated fundamental rights is “only the primary source of expressed information” as to what is meant by liberty proclaimed by the Preamble of the Constitution. He also acknowledged that our judiciary barring a few exceptions like Gopalan and ADM Jabalpur did not adopt the textual approach—which is why it recognised the freedom of press as a fundamental right though the same is not mentioned in the Constitution.

The court has also read several other rights under Article 21 such as right to education, right to reputation, right to livelihood, right to environment and right to speedy trial as implicit within the meaning of ‘life’. He said that accepting the government’s argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be not only too primitive an understanding, but also contrary to the settled canons of constitutional interpretation. This textual approach, in his view, about rights and liberties would be clearly an affront to the collective wisdom of the members of Constituent Assembly and our people. Some members opposed express inclusion of right to privacy in the limited context of ‘searches’ and ‘secrecy of correspondence.’ But privacy has a much larger dimension which were not debated and the framers were certainly not oblivious to privacy’s significance.

Though it is not written in the text, all fundamental rights are to be read together. Justice Chelameswar observed that these rights are not a series of isolated points, but a rational continuum of the legal concept of liberty, i.e. freedom from all arbitrary encroachments and purposeless restraints sought to be made by the state. Let us hope future judges will use constitutional silences only to expand  fundamental rights and not to curtail our liberties.

Faizan Mustafa
Vice-Chancellor of NALSAR University of Law, Hyderabad


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