Tag Archives: privacy

‘O Brave New World’: The Supreme Court’s Evolving Doctrine of Constitutional Evasion

The Government initiates a program on a national scale, which has far-reaching effects upon the lives of citizens. It stakes its credibility and prestige upon the program, and defends its transformative potential for the country. Critics disagree. Among other things, they argue that the program is illegal without the sanction of law, and also infringes constitutionally guaranteed fundamental rights. The critics move the Court, and request an early hearing, since the government’s program is changing facts on the ground on a daily basis. The Court hears the case. Perhaps it agrees with the critics, and invalidates the program. The government then has to go back to the drawing board, iron out the illegalities, and come back with another program (if it considers it to be worth the effort). Or, the Court agrees with the government, and holds the program to be legally and constitutionally valid, and the government carries on. In both situations, the Court pronounces upon the scope and limitations of the fundamental rights at issue.

That is an example of a well-working system of checks and balances. However, over the last few months, there are indications that this system is not working in quite the manner that it should. This is a cause for significant concern.

The Aadhaar Hearing

The first substantive hearing in the constitutional challenge to the government’s Aadhaar Program took place on 23rd September, 2013 (all orders in Writ Petition 494/2012 can be accessed here). On that day, a two-judge bench of the Supreme Court admitted the petition for hearing, and passed the following order:

… no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory.

On 8th October, 2013, the case was listed for “final hearing” on 22nd October, 2013. On 26th November, 2013, the Court passed directions for impleadment of all states and union territories. The case then proceeded to a three-judge bench. Through the course of January to April 2014, the three-judge bench heard arguments by Mr Shyam Divan, senior counsel for the Petitioner, on a number of dates. At the end of April, the case was listed for July, but only came up for hearing next more than a year later, on 21st July, 2015. Through the last week of July and the first week of August, the three-judge bench heard arguments from both Mr Divan and Mr Gopal Subramaniam .

At this point, the Attorney-General argued that there was no fundamental right to privacy under the Indian Constitution, and cases that had consistently held to the contrary since Gobind vs State of MP in 1975 were wrongly decided, since they had ignored binding eight and six-judge bench decisions. He asked for a reference to a larger bench. The Court agreed. On 11th August, 2015, it passed a detailed reference order.  In the order, it noted that:

“We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

The Court also stated:

“Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.”

Until the time that the case could be heard by a larger bench, the Court also issued the following directions:

“The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen… [and] the Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme.” 

There was one more substantive hearing, on 15th October, 2015. A five-judge bench of the Court added some more schemes to the ones listed out in the 11th August order, for which the Aadhaar Card could be used. The Court reiterated that:

We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

And:

“Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.”

A five-judge bench is constituted by the Chief Justice at his discretion. After the hearing of 15th October (fifteen months ago), the case has not been heard. In the meantime, the government’s conduct is well-known. The Aadhaar Act was passed, to give statutory sanction to the program (questions have been raised about the constitutionality of the Act as well, especially regarding excessive delegation and the fundamental right to privacy). Despite numerous Supreme Court directions that Aadhaar could not be made mandatory, there have been reports on an almost weekly basis that an Aadhaar Card is effectively a requirement for some or the other benefit (the most recent one being today, for the MGNREGA). Contempt petitions have been filed before the Court, which remain pending.

In light of the Government’s conduct over the last year and a half, the Court’s refusal to hear the case goes beyond ordinary situations of matters being stuck in the courts for long periods because of judicial backlog and pendency. Aadhaar is a classic case where the more the Court delays, the greater the Government’s ability to eventually present it with a fait accompli – the fait accompli being that Aadhaar coverage becomes so deep, pervasive and intertwined with citizens’ lives, that even if the Court was to hold it unconstitutional, it would be, virtually, a technical or physical impossibility to undo it – or, if not an impossibility, the cost of disruption would be so prohibitively high, that no Government could reasonably implement it, even if it wanted to.

For these reasons, when the new Chief Justice assumed office this week, the case was mentioned before him for an urgent hearing. The request was declined (with observations that are deeply concerning, if they reflect the Court’s institutional position on fundamental rights). Presumably, it will not be heard any time soon – despite two judicial observations from the middle of 2015 highlighting the urgency of the case, and the need for a quick hearing.

Demonetisation

On November 8, 2016, the Prime Minister announced that Rs. 500 and 1000 notes would cease to be legal tender from midnight. In the coming weeks, this announcement was followed by a slew of notifications from the Reserve Bank that placed various restrictions on what citizens could or could not do with their money – how much they could withdraw from ATMs, how much they could withdraw from banks etc. At the time, the Prime Minister made the prediction – which now appears to be a little optimistic – that normalcy would return within fifty days – that is, by the end of the year.

As Namita Wahi argues, there are substantive legal arguments for the proposition that the demonetisation policy violated both law and the Constitution. On the first, arguably, the policy was ultra vires the RBI Act, and consequently, required the sanction of either a law, or an Ordinance (there is an Ordinance now). And secondly, that the Policy violated the right to property (Article 300A), as well as the fundamental rights to trade and life.

These arguments were raised by various petitioners challenging various aspects of the policy, who moved the Court soon after November 8. A number of abortive hearings took place over the course of the last week of November, and the first half of December. Finally, the Court referred the case to a five-judge bench, and formulated a number of questions about the legality and constitutionality of demonetisation.

It is now almost two months after the initial announcement. The Prime Minister’s self-imposed time limit of 31 December has expired. Many deaths have been reported. Much of the cash that was supposed to have been taken out of circulation is – reportedly – back in banks; whether or not it is true, surely, if not now, then soon enough, demonetisation will begin to wind itself down. In the meantime, there is no sign of the Constitution Bench.

Judgment by Evasion

Rarely – if ever – are contesting parties before a Court on equal terms. Before the Supreme Court, one party will always have the judgment of the lower Court in its favour, and consequently (absent a stay) will benefit from the case getting held up in the Court. In that sense, Aadhaar and Demonetisation are simply incidents of a broader problem of delay and backlog, where failure to hear and decide cases expeditiously does not cause equal harm to both sides, but benefits one at the cost of the other.

However, there is something more here. First of all, Aadhaar and Demonetisation are not ordinary cases – they are classically about the exercise of immense coercive State power against citizens. Adjudicating the legal validity of such State action is at the heart of why we have an independent judiciary. It is the reason why there is a system of checks and balances: because when power on such a scale is unrestrained by the rule of law and by constitutional norms, history has told us more than enough times what follows.

Secondly, as discussed above, this is not a case involving disputed property where, ten years later, the Court can decide the case and order the person in possession of the property to hand it over the victorious litigant. Aadhaar and Demonetisation are cases where, if the Court does not decide the issue within a certain period of time, any future decision will be an exercise in futility. It makes no sense to decide Demonetisation next year, after the policy has run its course – whatever rights were violated (if, that is, rights are being violated) cannot then be redressed. Similarly, it makes no sense to decide the constitutionality of Aadhaar after the program has begun to be used to avail virtually all (public, and some private) social services, and can no longer feasibly be disentangled from the daily lives of citizens.

Consequently, by refusing to decide, the Supreme Court effectively does decide – in favour of the Government. In effect, it upholds the validity of Aadhaar without hearing arguments on the constitutional questions, and without passing a reasoned judgment on Aadhaar and the right to privacy. In effect, it upholds the Government’s Demonetisation policy without deciding whether it is open to the State to place onerous restrictions on what citizens are allowed to do with their own money. In effect, it takes the side of State power, against citizen.

It is open to the Supreme Court to do so. But if that is what it is doing, then it ought to have the moral courage to defend its position in a reasoned judgment. It ought to explain – publicly – to citizens the scope of their fundamental right to privacy, and the manner in which Aadhaar is consistent with it. Once the Supreme Court decides, then its judgment can be engaged with, defended, criticised, its reasoning scrutinised closely, its positions critiqued. That is how it ought to be. But by simply refusing to hear and decide the case, where the consequences of non-decision are both terribly high and absolutely decisive, the Court only ends up abdicating its role as the organ of the State that is meant to stand between citizen and government power, and to keep the latter within its constitutionally-defined spheres.

The fact that this is how two of the most important constitutional issues in recent times have fared in the Supreme Court suggests that scholars of the Court can no longer make do simply with studying what the Court has held, and the jurisprudence that it has created through its judgments. Scholars must now also study this evolving jurisprudence of Constitutional evasion, which is defined by refusal, and by silence.

 

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Privacy and Functional Constitutionalism

“… the functional–pragmatic view is normative… in the… sense of making predictions about the necessities acting on present practices. It could claim, for instance, that the commitments laid out in the [Constitution] cannot be consistently met without a further right to privacy. This would be a functional argument: a right to privacy is necessary to protect speech and property and to prohibit unreasonable search and seizure and self-incrimination. Such a move displaces the normative burden to a conception of dysfunction —to the idea that the difficulties encountered by democratic practice will undermine it if they are not resolved. The functional–pragmatic view reveals contradictions implicit in such practices and makes the claim, for example, that “if you’re really serious about protecting free political speech, you must institutionalize something functionally equivalent to a right to privacy.” In the case of free speech and the right to privacy, then, we would have to know when speech was not being properly protected and how a right to privacy could ameliorate the situation. A sound analysis of the particulars of the case would provide a functional argument for such a right. Absent some observable dysfunction, however, no such argument could be made.”

Kevin Olson, ‘Do Rights Have a Formal Basis?’ 11(3) The Journal of Political Philosophy 2003, pp. 284 – 285.

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The Bombay High Court’s beef ban decision

In a significant judgment delivered yesterday, the Bombay High Court struck down Sections 5D and 9B of the Maharashtra Animal Preservation Act, while upholding the other provisions of the act. Section 5D penalised the possession of beef, even if it had been brought from outside the state of Maharashtra. Section 9B reversed the presumption of innocence, and required that in a trial for the contravention of the Act, it would be for the accused to show that he had not violated the provisions of the law.

The Maharashtra Animal Preservation Act of 1976 had placed a ban upon cow slaughter in the state of Maharashtra. An Amendment Act – passed in 1995, but that only received Presidential assent in 2015 – extended the ban to the slaughter of bulls and bullocks as well. The Preamble to the Act was amended to specify that the Act’s purpose was the preservation of “cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes.” In addition to Section 5 of the Act, which now prohibited the slaughter of cows, bulls, and bullocks, the legislature added four sections: 5A, which prohibited transportation or export of cows, bulls or bullocks from within the State to any place outside the State for the purpose of slaughter “in contravention of the provisions of this Act“; 5B, which prohibited the purchase or sale of cows, bulls or bullocks for slaughter; 5C, which prohibited possession of the flesh of any cattle slaughtered in contravention of the Act; and 5D, which prohibited possession of cattle flesh brought from outside the State. To enforce these provisions, an amended Section 8 authorised Sub-Inspectors and higher-ranking police officers to search and stop vehicles, seize cattle flesh, and inspect any place. The Statement of Objects and Reasons of the Amendment Act specified that Maharashtra was a predominantly agricultural state, and that therefore, preserving animals for milch, draught and breeding purposes was specifically important.

All these provisions were challenged in a number of writ petitions, on grounds of Articles 19(1)(g), 21, 25, and 29 of the Constitution. These were heard and disposed off together by a two-judge bench of the High Court. To start with, it is important to note that to a large extent, the Bombay High Court’s hands were tied by a number of judgments of the Supreme Court that had upheld complete bans on cattle slaughter. From Mohd Hanif Qureshi to Mirzapur Moti Kureshi Kasab Jamat, numerous benches had consistently rejected arguments based upon the freedom of trade and the freedom of religion, and had held, instead, that the preservation of cattle in an agrarian economy was a matter of overriding public interest. Consequently, the Petitioners were very much swimming against the tide, and the rejection of most of their submissions cannot come as any great surprise.

The Court’s consideration of the substantive arguments begins at paragraph 92, on page 88 of the judgment. The first issue before the Court was whether the addition of “bull or bullock” to “cow” under Section 5 was constitutionally valid. Inevitably, the Court’s analysis largely mirrors that if Mirzapur Moti Kasab Kureshi Jamat, where a near-identical provision in Gujarat was upheld. In Mirzapur Moti, the Court had relied extensively on the Directive Principles of State Policy (in particular, Article 48) to uphold the prohibition. It had held that the importance of cattle to an agrarian economy justified a complete ban in the public interest, even though it did infringe Article 19(1)(g) of the Constitution. Following this, the Bombay High Court takes on board evidence (in the form of affidavits filed by the State) in order to determine the importance of cattle to the economy of Maharashtra (Paragraphs 101 – 109). It then proceeds to examine the challenge based on Article 19(1)(g), and after citing precedent, concludes:

“The question is whether the restriction imposed by Article 19(1)(g) is unreasonable. We find nothing unreasonable about the said restriction. It is for giving effect to Article 48 and Clause (g) of Article 51A of the Constitution of India. The restrictions are not arbitrary and therefore, do not infringe Article 14. Therefore, the challenge based on violation of Article 19(1)(g) to the amendment made to Section 5 of the Animal Preservation Act completely prohibiting the slaughter of cows, bulls and bullocks is without any merit.”

Unfortunately, this finding perpetuates a continuing confusion about the relationship between Parts III and IV of the Constitution. Under Article 19(6), there are two separate elements of a valid restriction upon the freedom of trade: public interest, and reasonableness. Over the years, the Courts have invoked the Directive Principles to hold both that a restriction is in the public interest, and that it is reasonable. This is very obviously incorrect. The Directive Principles are framed as goals that the State should take steps to accomplish. It therefore makes sense that a law directed towards fulfilling a Directive Principle must be held to be in the public interest. The requirement of reasonableness, however, has nothing to do with the goal that is sought to be achieved. Rather, it has everything to do with the methods applied to achieve that goal. In this enquiry, the DPSPs – which, by definition, are framed as goals – cannot help (for an examination of some of the cases, see here).

The use of DPSPs to find reasonableness denudes the enquiry of its substantive content. Just recently, the Supreme Court held that reasonableness, under 19(6), involves a “proportionality” enquiry. That enquiry did not happen in Mirzapur Moti, and it does not happen here. It is not simply enough to show that cows, bulls and bullocks play an important role in the agrarian economy – that only speaks to the public interest prong of the 19(6) enquiry. It is equally important to show that a complete ban on cattle slaughter is a proportionate way of addressing the problem, and that there do not exist other ways that could be equally efficacious, but which do not involve the same extent of infringement of Article 19(1)(g). This would require the Court to go beyond the affidavits submitted by the State, and engage in a first-level enquiry (something which, I’ve argued before, it ought to do when it comes to fundamental rights). Unfortunately, however, we only have a continuation of the same manner of deference to the State that has been the hallmark of previous cattle slaughter cases. Once again, though, it is difficult to see what else the High Court could have done, in the teeth of fifty-five years of consistent Supreme Court precedent.

The Court then goes on to reject the Article 25 challenge (again, following previous judgments that have held that cow sacrifice is not an “essential” part of Islam), as well as the Article 29 challenge (paragraphs 134 and 135). This brings the Court then, to consider the constitutional validity of Sections 5A, B, C, and D. The Court upholds Sections 5A (transport/import), B (sale/purchase) and C (possession) on the ground that they all have a direct and proximate nexus with the legislation’s goal of preventing cattle slaughter.

There are, however, two serious problems with this analysis. Consider, first, Section 5A, which prohibits transport to another State for the purpose of slaughter. The Court observes that “the object of the amendment to Section 5 is to preserve cows, bulls or bullocks inside the State. It can be said that this provision has a direct and proximate nexus with the object sought to be achieved by making amendment to Section 5 for imposing prohibition on slaughter of cows, bulls and bullocks in the State.” This, however, makes no sense. If the purpose is to preserve cattle inside the State, then the ban should be on all transport outside the State – what happens to the cattle once it exits the borders of Mahrashtra makes no difference to the fact that the moment it does, the cattle population of Maharashtra accordingly decreases. The Court understands this, acknowledging that the provision makes “little practical sense” (paragraph 137). But it then gets around that by holding that the Section covers “cover a hypothetical case of such transport of animals outside the State so as to slaughter it within the State, of course, after it is brought back to the State possibly by the slaughterer himself, the transporter and slaughterer being different persons.” 

But that is not what Section 5A, plainly worded, says. It penalises all transport outside the State for the purposes of slaughter, wherever that slaughter might take place. The Court’s construction of Section 5A, to save it from unconstitutionality, is strained to say the least.

Similarly, when examining Section 5C (possession), the Court holds that penalising possession is, likewise, required to effectively implement the ban on slaughter (paragraph 144). Matters are not so simple, however. What the Court fails to take into account is that enforcing the ban on possession will inevitably infringe the privacy of the possessor under Article 21 of the Constitution. This adds an extra layer to the balancing process. For instance, in Stanley vs Georgia, the American Supreme Court held that even though obscenity was not protected by the First Amendment, the criminalisation of mere possession of obscene materials could not be countenanced, on privacy grounds. While there are some important differences between the two cases, the basic argument is this: while the State may legitimately ban cattle slaughter under Article 19(6) of the Constitution, criminalising possession will require invasions of privacy that need to be separately justified under Article 21’s compelling State interest-narrow tailoring test (the Court does hold, however, that “possession” under 5(C) is limited to “conscious possession, and the burden of proving that is upon the State (paragraphs 149 – 150).

The Court’s failure to deal with privacy in its Section 5C enquiry is all the more disappointing, since it proceeds to do so extensively while discussing Section 5D (possession of the flesh of cattle slaughtered outside the State). Notwithstanding the pending Constitution Bench reference about whether or not privacy is a fundamental right, the Court exhaustively considers precedent on the point. It finds (correctly, in my opinion) that M.P. Sharma vs Satish Chandra was decided on different grounds, and Kharak Singh, while disclaiming an express right of privacy, nonetheless effectively derives a right of that nature from personal liberty under Article 21. Consequently, neither M.P. Sharma, nor Kharak Singh, can overturn the last forty years of established jurisprudence holding that privacy is a fundamental right under the Constitution (paragraphs 155 – 173). The Court then holds:

“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health. As observed earlier, even a right to sleep is held as a part of right to privacy which is guaranteed under Article 21 of the Constitution of India. In fact the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious). In the decision in the case of Hinsa Virodhak Sangh, the Apex Court has specifically held that what one eats is one’s personal affair and it is a part of privacy included in Article 21 of the Constitution of India. Thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone. If a particular food is injurious to health or a particular food is illegally manufactured, it will be a case of compelling public interest which will enable the State to deprive citizens of the right to privacy by following the procedure established by law. In the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)

In this paragraph, the Court endorses two different (and complementary) conceptions of privacy. The first is a spatial vision: “the State cannot make an intrusion into his home… the citizen has a right to lead a meaningful life within the four corners of his house…” In other words, invasion of an individual’s “private space” in order to discover whether or not he is eating beef violates privacy (readers will not that this argument applies exactly to Section 5C as well). The second is a vision of privacy as decisional autonomy – “what one eats is one’s personal affair, and it is part of privacy… [Section 5D] violates the right to be let alone.” At first glance, it might not seem that dietary choices hardly implicate those kinds of fundamental life decisions that are normally associated with individual autonomy. This is perhaps why it might be more helpful to think of this not in terms of how central dietary choice is to individual autonomy, but in terms of something that Jed Rubenfeld has called the “anti-totalitarian principle” (previously discussed here): State power ought not to be used for “forcing of lives into well-defined and highly confined institutional layers.” Control over diet is one instance of State shaping lives into a rigid pattern (often justified by ideological considerations).

The Court ends by concluding that even if there is no right to privacy under the Constitution, intrusion into private dietary choices clearly violates personal liberty under Article 21 (paragraph 193).

As I mentioned in the beginning of this post, the Bombay High Court did not have very much choice when it came to upholding the cattle slaughter ban, generally. There were, however, good reasons to strike down Sections 5A and 5C, and to that extent, the judgment is disappointing. It is also disappointing that the well-documented discriminatory effect of the ban on certain castes and classes, in terms of economics and affordability (leading to a possible Article 14 and 15 claim), was discussed cursorily at best  The strong endorsement of a robust privacy right, however, is certainly encouraging.

(A guest post tomorrow will discuss the concurring opinion, which strikes down Section 9B’s reverse burden as unconstitutional)

 

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T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

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Aadhar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions

(Edit: This essay is about whether Aadhaar can be linked to a governmental benefit scheme, and justified on the ground that beneficiaries make a free choice to give up their right to privacy in order to access benefits. The argument does not apply to cases where an individual chooses to opt for a voluntary Aadhaar scheme, where equally efficacious alternatives exist to avail of the same benefits. The validity of such a situation would depend upon whether fundamental rights may be waived in any circumstances, and that is dependent on a different set of arguments.)

(Edit 2: It was pointed out to me in the comments section that the irrevocability of parting with your biometric information makes this a more or less permanent waiver of fundamental rights. This point rather complicates the government’s argument of the voluntary nature of the “choice” in question. For instance, the reason why voluntary enslavement and voluntary servitude are prohibited is because the exercise of a one-time choice in a manner that no further choice in the matter is possible is not in consonance with our ideas about autonomy (which is something that human beings must be in a position to exercise at all times).

From reports of today’s Supreme Court proceedings in the Aadhaar review petitions, it appears that counsel invoked the doctrine of waiver: it was argued that citizens were entitled to waive their fundamental right to privacy (assuming that privacy is a fundamental right) in return for the governmental benefits that the possession of an Aadhaar card confers. The implications of the argument are significant, because it would allow the government to make Aadhaar not just optional, but mandatory as well: the government could argue that under a mandatory Aadhaar regime, citizens still have the option of protecting their privacy by foregoing Aadhaar (and its accompanying benefits), or taking Aadhaar, and waiving their right to privacy. In other words, citizens can choose to waive their right if they want access to certain benefits.

Framing the question as being one of waiver, however, misstates the real issue. The real issue is not whether, in the abstract, citizens can waive their fundamental rights if they so choose. It is whether the government can impose waiver of fundamental rights as a condition for accessing certain benefits. With respect to Aadhaar, the stakes are even higher, because the debate has been framed around the needs of poorer citizens to access government benefits. For many of these citizens, the choice between accessing benefits and losing privacy is a false choice, because it requires them to choose between a privilege that is essential for their livelihood, and a fundamental right.

In a recent, previous post, I had discussed the doctrine of unconstitutional conditions in relation to the denial of tax benefits to a film on homosexuality. I will not repeat the argument here, but only reproduce the relevant paragraph from the concurring opinion of Justices Chandrachud and Mathew in Ahmedabad St Xavier’s College vs State of Gujarat:

The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”

Soon after, the judges explained the purpose of the doctrine of unconstitutional conditions further, by referencing the reasoning of Justice Sutherland at the US Supreme Court, in strikingly relevant terms:

“If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool–an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”

And:

“This is much the same as what Das, C.J. said in In re: The Kerala Education Bill: No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1)“.

This last bit is particularly important, because the Aadhaar debate is framed around the access of poorer citizens to government benefits. For these citizens, those benefits are financial necessities. In Re Kerala Education Bill and Ahmedabad St Xavier’s College make it clear that by putting citizens in a position where they have to make a choice between a compelling financial necessity and the waiver of fundamental rights, the government is effectively giving them no choice at all, and is restricting their fundamental rights indirectly, by providing an illusion of choice and waiver. This logic applies squarely to the argument that privacy rights may be waived in order to access benefits linked to Aadhaar.

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The Right to Privacy and the Supreme Court’s Referral: Two Constitutional Questions

Today, in a detailed order in the ongoing Aadhar litigation, a three-judge bench of the Supreme Court referred the question of whether there exists a fundamental right to privacy under the Constitution, to a five-judge bench. In its order, the Court explains that the Attorney-General referred to the judgments in M.P. Sharma vs Satish Chandra (eight judges) and Kharak Singh vs State of UP (six judges), both of which seem to hold that there is no right to privacy under the Constitution. The Court then observes:

“The institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.”

One can have no quarrel with this reasoning. Nonetheless, I think that two important constitutional questions arise, which need to be addressed.

(1) (Edit: It was correctly pointed out to me by Suhrith Parthasarthy that the Supreme Court order does not specify that it is making a referral under Article 145(3). Taking that point on board, I rest the following discussion on the first sentence of paragraph 12 of the Order, where the Court says, in language that mirrors that of Article 145(3): “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution.” At the end of the same paragraph, however, it also suggests that the reason for referral is to clear up an inconsistency between different benches. My thanks to Suhrith for bringing this to my attention)

The referral has been made under Article 145(3) of the Constitution, which states that:

“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

What, precisely, constitutes “a substantial question of law as to the interpretation of this Constitution”? Before today’s order, there have been two constitutional challenges where the Court has refused to make a referral. The first is the constitutional challenge to Section 377 of the IPC, which was decided by a two-judge bench in Koushal vs Naz. The second is the constitutional challenge to Section 499 of the IPC (Subramanian Swamy vs Union of India), which is being heard by a two-judge bench at present. Both these cases raised questions of constitutional interpretation: Koushal vs Naz asked whether “sexual orientation” was a protected ground under Article 15(1) (whether arising out of “sex”, or as an analogous ground read into the provision), and whether sexual orientation was protected under Article 21’s right to privacy. The criminal defamation challenge asks whether a 155-year old legal provision under the Penal Code violates the freedom of speech and expression; it also asks the Court to harmonise the constitutional free speech standards that apply to civil defamation and criminal defamation.

What differentiates today’s order from the previous two? The only relevant difference seems to be the existence of conflicting judgments of varying bench strengths. But surely whether or not something involves a substantial question of law as to the interpretation of the Constitution cannot depend upon whether previous judgments have been consistent on the point! To a large extent, the fragmentation of constitutional jurisprudence in recent years has been due to two or three-judge benches hearing important constitutional matters (R. Rajagopal vs Union of India is a case in point). In the referral, the Supreme Court has a chance to clarify the criteria for future references; at the least, a challenge to the constitutional validity of a legal provision should certainly merit a hearing by a Constitution Bench!

(For an excellent discussion, see Suchindran Narayan’s essay on Law and Other Things)

(2) In the logical course of things, a three-judge bench will refer the matter to a five-judge bench, which will then decide whether or not to refer the matter to an even greater bench. The question in this case is: what should be the strength of the bench that decides the question of whether or not there exists a fundamental right to privacy? One argument is that since the decision in M.P. Sharma vs Satish Chandra has expressly been relied upon by the Attorney-General, the bench must consist of at least nine judges, since they can, if required, overrule that case.

With respect, I think this is incorrect. In my opinion, five judges (a Constitution Bench) are enough to decide this issue, for the reason that neither M.P. Sharma (eight judges) nor Kharak Singh (six judges) are binding on the specific issue of whether there exists a constitutional right to privacy. M.P. Sharma was a case involving Article 20(3) of the Constitution (the right against self-incrimination), and the Court’s observations on privacy are entirely incidental to the issue. Kharak Singh is a more complex case, that involved a constitutional challenge to certain forms of surveillance carried out by the police upon a “history-sheeter’s” residence, which included tracking his movements. With respect to the right to privacy, the Court noted:

“Does then the fact that an enquiry is made as regards the movements of the suspect and the facts ascertained by such enquiry are verified and the true facts sifted constitute an infringement of the freedom to move? Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

What is crucial to note here is that the observations on privacy arise out of a specific and concrete question: whether the tracking of someone’s movements violates his fundamental rights. The Court’s reasoning, which is contained in a previous part of the judgment, is as follows:

“The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Art. 19 (1) (d) or “a deprivation” of the “personal liberty” guaranteed by Art. 21. Taking first Art. 19 (1) (d) the “freedom” here guaranteed is a right “to move freely” throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of the guaranteed movement, we agree that the right to “‘move” denotes nothing more than a right of locomotion, and that in the context the adverb “‘freely” would only connote that the freedom to move is without restriction and is absolute, i. e., to move wherever one likes, whenever one likes and however one likes subject to any valid law enacted or made under cl. 5. It is manifest that by the knock at the door, or by the man being roused from his sleep, his locomotion is not impeded or prejudiced in any manner. Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the “‘free” movement guaranteed by sub-cl. (d). We are not persuaded that Counsel is right in the suggestion that this would have any effect even on the mind of the suspect, and even if in any particular case it had the effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Art. 19 (1) (d)has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.”

The Court then noted that under the scheme of the Constitution, Article 21 contained the “residue” of the rights that were left out from Article 19. Consequently, the core of the Court’s reasoning was that the “right to movement” was solely contained within Article 19(1)(d); having once found that Article 19(1)(d) was not attracted, the question of Article 21, and  did not even arise.

However, in Gobind vs State of MP, the case which birthed the fundamental right to privacy, it was indeed held that privacy was an aspect of Article 21, on which issue Kharak Singh was not binding. There are independent reasons why Gobind was correctly decided: the “residue theory” in Kharak Singh was no longer good law; in Maneka Gandhi vs Union of India, the previous eleven-judge bench decision in R.C. Cooper had been relied upon specifically to abandon the interpretation of the Constitution that placed fundamental rights in separate, hermetically sealed containers. After Maneka Gandhi, therefore, the basis of Kharak Singh had, in any case, been obliterated.

Consequently, neither M.P. Sharma nor Kharak Singh are binding upon the question of whether there exists a fundamental right to privacy under the Constitution. The question turns upon interpreting the relationship between R.C. Cooper, Maneka Gandhi and Kharak Singh, and independently assessing whether, in light of the “inter-relationship of rights” theory that existed at Gobind’s time, whether it was correct in extracting a right to privacy out of a structural reading of the Constitution.

For various reasons, I believe that Gobind was correctly decided. For now, though, a Constitution Bench should decide the case without the constraining shackles of either M.P. Sharma or Kharak Singh.

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Privacy and Bodily Integrity – I: Compelled Medical Evidence under S. 112 of the Evidence Act

Previously on this blog, we have discussed  the constitutional right against self-incrimination in the context of intrusive interrogation techniques, such as narco-analysis, polygraph tests and brain-mapping, and how they impinge upon the citizens’ informational and mental privacy. In particular, we saw how the Supreme Court’s jurisprudence has tracked two distinct ideas, or purposes, that could underlie Article 20(3) of the Constitution, which guarantees the right against self-incrimination: a crime-control model, which takes the goal of the criminal law to be efficient and accurate fact-finding, and therefore tolerates only those procedural safeguards and limitations that can contribute to discovering the truth; and a due process model, which views procedural safeguards as essential to protect citizens’ basic rights against an increasingly ubiquitous and intrusive State.

Within this conceptual framework, consider S. 112 of the Evidence Act, which states:

“Birth during marriage, conclusive proof of legitimacy — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Under S. 4 of the Evidence Act, conclusive proof of a fact precludes any evidence from being given for the purposes of disproving that fact. In other words, it is an irrebuttable legal presumption.

What might be the basis for creating such a presumption? Consider the following argument: the privacy of marriage and the family (as upheld by Gobind vs State of Madhya Pradesh to fall within Article 21) would preclude judicial cognisance of evidence for or against paternity, since that question is quintessentially within the domain of the family. But that, in itself, doesn’t explain why there is a presumption of legitimacy.

Perhaps, though, the underlying rationale of the Section isn’t about maintaining the privacy of family life, but the privacy of information that is deeply personal to the child. Cognisant of the social stigma that accompanies a declaration of illegitimacy, the Section states that whatever might be the actual state of affairs, in the absence of a narrowly circumscribed range of exceptions, the child will be presumed to be legitimate. Alternatively, consider still another justification: in 1872, when the Evidence Act was drafted, there was no way of proving paternity. Blood samples and DNA tests were unknown. Consequently, perhaps the Section acknowledges that fact, and fixed a presumption on the side of the more likely, and administratively more efficient, outcome – that of legitimacy.

As we can see, the former rationale closely approximates the due process model, with its focus on protecting individual rights. The latter, on the other hand, is closer to the crime-control model (albeit in a civil context), as it is motivated by concerns about the truth. This is not a theoretical debate because, as we shall see, the underlying purpose of S. 112 becomes relevant in contemporary times, when it has become possible to ascertain parentage and legitimacy by using scientific methods, such as DNA tests.

The first Supreme Court case to examine the issue in detail was Goutam Kundu vs State of West Bengal (decided in 1993). The appellant and the respondent were married. The respondent went to her parents’ house to study for her exams, during which time she conceived (despite pressures from her in-laws to have an abortion). She applied for – and was granted – maintenance. The Appellant filed a criminal miscellaneous petition asking for a blood test to prove paternity. He argued that if it was proved that he was not the father of the child, he would not be obliged to pay maintenance. His petition was rejected by the High Court and, consequently, he approached the Supreme Court.

The Supreme Court commenced by observing that unlike in the United Kingdom and the US, there was no statutory authorisation granted to the Courts, to direct the taking of blood samples. It then cited the 1975 Kerala High Court judgment of Vasu vs Santha, where the Court had provided two rationales for S. 112: first, for “considerations of public policy… there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court.” And secondly, “before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful… the maximum that can be done where a party refuses to have a blood test is to draw an adverse inference.” Both these reasons, very obviously, are located within the due process model, focusing on informational privacy (avoiding social stigma) and bodily privacy interests.

The Court then noted that a “rebuttable presumption” existed that a child born during wedlock was legitimate, and that “access occurred between parents” – a presumption that could be displaced only by a “strong preponderance of evidence.” Notice that this is not entirely correct: there is a rebuttable presumption of access, where the onus is upon the one challenging paternity to displace it, but in case he cannot do so, there is then an irrebuttable presumption of legitimacy.

In the present case, since there was no evidence showing non-access, the Court declined to order the blood test. In conclusion, it laid down five principles: first, that a court could not order a blood test “as a matter of course“; secondly, that a request for a blood test as part of a “roving enquiry” would not be entertained; thirdly, that there would have to be a “strong prima facie case“, i.e., the husband must establish non-access in order to displace the presumption; fourthly, the Court would examine the consequences of ordering the blood test, and whether “it will have the effect of branding a child as a bastard and the mother as an unchaste woman“; and lastly, nobody could be compelled to give a blood sample for analysis (based, as we have discussed above, upon the right to bodily liberty/privacy). Presumably though, as held in previous cases, an adverse inference could be drawn upon refusal.

While much of this sounds straightforward and sensible, there is a curious slip between the third and the fourth principles. In the third, the Court correctly holds that in order for the question of a blood test even to arise, the husband must establish non-access, so as to refute the irrebuttable presumption of legitimacy. But the Court then also holds that it would examine the consequences of passing such an order, based upon concerns relating to informational privacy. Yet consider this: if the purpose of the irrebuttable presumption of legitimacy was to preserve the informational privacy of the child and mother, and save them from social stigma, then the consequences of allowing any kind of evidence (including a blood test) to be led, had already been considered by the legislature while drafting S. 112. In other words, the balance between protecting individual privacy, and ascertaining legitimacy (with all its attendance adverse consequences for the wife and child) was already written into the text of the statute, through a two step procedure, the first of which required the husband to prove non-access, and the second of which barred any evidence from being led on the question of legitimacy, if he could not do so. But if that was the case, then the Court was not entitled to re-open a question that had already been settled by the legislature. By considering the “consequences” of ordering a blood test (in light of its impact upon privacy), the Court was balancing the same concerns that had already been balanced while drafting the statute.

Consequently, the only way to reconcile the Court’s dictum with statutory interpretation is to hold that the irrebuttable presumption of legitimacy speaks not to the protection of privacy, but to the ascertainment (or, in 1872, the inability of ascertaining) the truth. Under this interpretation, the Court was then adding an additional layer of judicially-evolved safeguards by holding that even in cases were non-access was proved, the consequences of allowing evidence to be led (in terms of their impact upon individual privacy) would be judicially assessed, before any order could be given. But as we shall see, the failure of the Court to lay out a clear conceptual foundation underlying the scheme of 112 would eventually lead to a conflicted jurisprudence.

 

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