Judgments so bold


The Supreme Court has been busy upholding citizens’ rights, thus also opening the door for healthy discussions about privacy and rights, says C.V. Aravind.

In recent times, the apex court in the country, the Supreme Court, has covered itself with glory with a couple of judgments that could have a far reaching impact, vis a vis., the fundamental rights available to citizens as enshrined in the Indian Constitution.

The first was the abolition of triple talaq, for long the scourge of Muslim women across the country, a provision that provided for instant divorce by the husband by uttering the words, ‘talaq, talaq, talaq’. By a majority judgment in suits filed by aggrieved women, the court ruled triple talaq as illegal, and through its edict advised the government to pass suitable legislation to this effect.

The second judgment which was unanimous, was delivered by a nine-member Constitution bench headed by the Chief Justice of India, Justice J. S. Kehar, and this re-affirmed the provisions of Article 21 of the Constitution, and deemed that ‘privacy’ is a fundamental right, protected as an intrinsic part of the right to life and liberty. The landmark judgment came in a suit filed by Justice K.S. Puttaswamy (retd.) of the Karnataka High Court, and in the 547-page order, the learned judges decreed that privacy is a constitutionally protected value, and that as it is not a right granted by the state, the state cannot take it away.

All the earlier judgments in similar cases, some even dating back to the emergency days, were superseded and declared null and void. This decree could have a broader bearing on civil rights as well as the law under Section 377 criminalising homosexuality. Incidentally, a High Court order de-criminalising homosexuality had been overturned by the Supreme Court earlier. The right to privacy has also been brought on par with other rights such as right to life, and has been deemed as a part of freedom rights like the right of speech, movement etc., enshrined in Article 19 of the Constitution, and on similar terms with the right to human dignity.

The thin line of privacy
This judgment should ensure a paradigm shift in the manner in which the government deals with personal information. A case in point is the matter involving ‘Aadhaar’, the uniform identity card which requires extensive profiling of the holders and was envisaged to cover every man, woman and child in the country. When the UPA government set up the UIDAI to issue Aadhaar cards, the BJP then in the opposition deemed it as a fraud on the people of the country. This despite the fact that the card was intended only to ensure that the government benefits, and subsidies did not find its way into accounts other than those for whom they were intended.

In what can only be described as a virtual somersault, the NDA government in power headed by the BJP has made the possession of the card, which was optional and not compulsory in the beginning, as essential for several services including inter alia filing of IT returns, opening of bank accounts, booking air tickets etc. While almost the entire population has been covered through Aadhaar, the fear that the data could be leaked has not subsided, and with several agencies now in possession of these extensive profiles, including iris recognition, biometric impressions etc., the risk is greater. While the government has been initiating steps to secure the data, fool proof security is yet to become a reality. This new judgment could curb the government’s overzealousness to make Aadhaar compulsory, as it could impinge on the individual’s right to privacy.

The judgment has added relevance in the present day environment where restrictions are slowly being put in place over matters like what an individual should eat, how he or she should dress, how one should behave within the four walls of his house, etc. A relook might also be needed in the matter of LGBT rights as they too could fall within the purview of the judgment and restrictions might intrude into the privacy of the citizen.n

C.V. Aravind

C.V. Aravind is a Bangalore-based freelance journalist.