Sample Material of Current Public Administration Magazine
POLITY AND GOVERNANCE ISSUES
A Litmus Test
- Faizan Mustafa
In India, people have the right to life, but fake encounters and mob lynching
happen. In spite of the right to free speech, publications feel compelled to
withdraw articles critical of government or corporates. There is a right to
equality but discrimination is still rampant.
When the mention of fundamental rights in the Constitution is not able to
ensure their full implementation on ground, one wonders what will happen if
privacy is not recognised as a fundamental right. In such a situation, citizens
may not have protection against surveillance and even profiling by the state,
the state could target those who speak against it, even voting preferences may
be influenced, telephone tapping could be routinely resorted to and our mails
intercepted. This is indeed a terrifying prospect.
The right to privacy is not explicitly mentioned in the Constitution. But
then the right to “due process” too was not there and, in fact, was dropped by
the framers of the Constitution. Yet, the apex court read it into the “right to
personal liberty”. The court, in fact, silently brought about what may be called
a “rights revolution” by judicially creating several fundamental rights.
When the democratic state turned totalitarian under Indira Gandhi and started
abusing its powers to amend the Constitution, the Supreme Court as protector of
civil liberties stood firm and applied the brakes first, in 1967, by denying
Parliament power to amend the Constitution and then, in 1973, through the “basic
structure” doctrine which too is not there in the text of the Constitution.
If the text of the Constitution alone is going to determine the nature of the
right to privacy, then the collegium system, the right against arbitrariness and
the freedom of press too could go soon. Voluntary surrender of personal
information to private entities cannot be equated with mandatory data collection
by the state. The right to privacy judgment will be a litmus test for the apex
Will the court follow the rich traditions of 1967 and 1973 and rise to the
challenges of the information age? One hopes there would not be another ADM
Jabalpur (1976) kind of decision where the majority accepted the government’s
argument that when the right to life and personal liberty is suspended, citizens
have no remedy against illegal detention.
It is erroneous to believe that eight- and six-judge benches have
authoritatively held that there is no right to privacy. In the Satish Chandra
case (1954), the fundamental question was whether the state’s power of search
and seizure violated the right against self-incrimination under Article 20(3).
In a positivist mould, the court refused to read right to privacy under this
Then came the Kharak Singh (1963) case where a dacoity accused was released
and put under surveillance. Police constables would knock at his door, wake him
up during night and disturb his sleep. The majority conceded that “everyman’s
home is his castle” and struck down domiciliary visit regulations. But without
any elaborate discussions, the court yet again said that there was no
fundamental right to privacy in India.
But there was the powerful dissenting judgment of Justice Subba Roa, with whom
Justice J.C. Shah concurred. They argued that even though the right to privacy
is not specifically mentioned in the Constitution, it is a necessary ingredient
of the right to personal liberty. In the Gobind case (1975) the minority opinion
of Kharak Singh case became the majority opinion. The court has recognised right
to privacy as an integral part of right to personal liberty. Today, liberty is a
part of the basic structure of the Constitution.
Despite the recognition of privacy as a fundamental right, the government
will continue to have powers to impose “reasonable restrictions”. It is no
body’s case that the right to privacy is an absolute right. Moreover, global
experience shows that the denial of privacy neither promotes national security
nor curbs terrorism, it merely takes away citizen’s freedom to be left alone and
curtails his/her choice in personal decisions.
(Source- The Indian Express)
Get this magazine (Current Public Administration) free if you purchase our any
of the below courses: