Trespassers to be prosecuted

Majesty of the law has reigned supreme! The Supreme Court has protected the Right to Privacy as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. The freedom of privacy now stands guaranteed by Part III of the Constitution. Consequently, judgements rendered in 1954 (8 Judges) and 1962 (6 judges) to the extent of the Right to Privacy have been overruled by a nine-judge bench of the Hon’ble Supreme Court.

There was hardly a doubt that a 63-year-old judgement would not be overruled on Thursday. In the ringing parting words of Hon’ble Justice Sanjay Kishan Kaul: “Old order changeth yielding place to new. This is the call of today.” The judgement is a clean sweep (9:0) unlike the wafer-thin majority (3:2) of the triple talaq verdict. Rousseau had stated in 1762 in his famous book The Social Contract, “Man is born free and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.” About 265 years later, as civilisation and technology have advanced, Rousseau’s words have assumed critical significance. The tendency of the State, cutting across party affiliations, to pounce upon all and sundry on beliefs, views, feelings, suspicions, surmises, conjectures, probabilities, possibilities and speculations is intensifying. This tendency often targets inconvenient persons. Often scores are settled through the instrumentalities of the State. No government has been immune from this malaise. It is just a question of degree. Now, hopefully, this tendency will wane. The right to be ‘left alone’ has been firmly protected by the Supreme Court. If the State dares to transgress its lawful limits, then a private individual can display a signboard: “Trespassers will be prosecuted.”

Every Fundamental Right, however, is subject to reasonable restrictions in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or incitement to an offence. In fact, Article 21 itself stipulates that life and personal liberty can be deprived according to procedure established by law. Therefore, the State would continue to exercise its powers to curb privacy in the aforesaid extraordinary situations, and not at the drop of a hat!

A very interesting observation made by Justice SK Kaul, agreeing with Justice RF Nariman and Justice Dhananjay Y Chandrachud, is that “one’s sexual orientation is undoubtedly an attribute of privacy”. Thus the Naz Foundation judgement of the Supreme Court pertaining to Section 377 of the Indian Penal Code has been effectively nullified, and the judgement of the Delhi High Court stands reaffirmed. The Delhi High Court had observed that the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. This view of the High Court did not find favour with the Supreme Court which observed that only a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders. The Supreme Court had held that there cannot be any basis for declaring Section 377 of IPC ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. This had led to a debate about sexual orientation even within the four walls of the house. Many debated: Can one be a born criminal just by their sexual orientation? This has been set right in Thursday’s judgement. The SC held that the Right to Privacy cannot be denied even if a miniscule fraction of the population is affected.

Justice Chandrachud (writing for himself, Hon’ble CJI JS Khehar, Hon’ble Justice RK Agarwal and Hon’ble S Abdul Nazeer) has also read Article 20 (3) as a part of Right to Privacy. Article 20 (3) is a right against self-incrimantion: It stipulates that no person accused of an offence can be compelled to be a witness against himself. In short, this is right to silence. The logic is clear: if an accused can have this right to silence, can a non-accused be denied similar right? Therefore, right to silence is nothing short of right to be left alone.

The court also held that privacy is a constitutional core of human dignity, and that privacy has both negative and positive content. The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual.

Overall, a landmark judgement of the Supreme Court and democracy in India continues to thrive !

The author is former Additional Solicitor General of India and senior advocate in the Supreme Court