Understanding the ‘Elitist’ Argument against the Fundamental Right to Privacy

The unanimous Right to Privacy judgment of the nine judges’ bench of the Supreme Court delivered on 24th August, 2017 has been widely heralded as the dawn of a new era in the constitutional jurisprudence of India. It has now been dissected in the several articles published in the newspapers and news web portals in great detail. The judgment is very significant because a very important negative fundamental right primarily stemming from the fundamental right to life and personal liberty provided for in Article 21 of the Constitution has been conclusively upheld after 67 years of the commencement of the Constitution of India. Negative fundamental rights are those rights which put limitations upon the State’s power by circumscribing the limits on the exercise of governmental power. It is traditionally understood that civil and political rights or first generation rights in the form of fundamental rights under the Indian Constitution are negative rights. In the context of constitutionalism therefore negative fundamental rights provide an important edifice by ensuring against the absolutist powers of the State, which is what the principle of constitutionalism strives for. It is absolutely true that the Supreme Court has not for the first time read a right as implicit in the normative grounding of the fundamental rights emanating from the text of fundamental rights in the Constitution of India. But rarely has there been a negative fundamental right read into the available fundamental rights by the Supreme Court which has such a far reaching consequence, especially if one goes by the scope of the right to privacy as identified in the judgment delivered by Justice D. Y. Chandrachud for himself and three other judges including the then Chief Justice, Justice J. S. Khehar.

It is important to note, however, that Justice Chandrachud has declared not only a negative right to privacy as a fundamental right but even a positive right to privacy as a fundamental right. A positive fundamental right emanating from civil and political rights is not directed against the State’s excesses rather it obligates the State to provide against the incursions of right by private individuals or entities. Socio-economic rights are generally understood as second generation rights or positive rights which obligate the State to enable access to basic human needs of every citizen who does not possess the means to access it. In the Indian context it is significant to remember that the Supreme Court by its earlier pronouncements have obliterated the absolute divide between civil and political rights and socio-economic rights. The Court has done this primarily by reading into fundamental right to life under Article 21, a right of human dignity and consequently reading right to access to basic human needs like food, shelter, health and education into it. It is also important to note that human dignity is the pivot or the framework right which is applicable both in cases of reading unwritten civil and political rights and unwritten socio-economic rights into the written fundamental right to life.

In this context therefore, one can better appreciate the argument advanced on behalf of the Government of India in the privacy case that an argument in favour of right to privacy is elitist. Attorney General P. Venugopal has argued that in the expression “right to life and personal liberty” in Article 21 “right to life” is to be given primacy over “right to personal liberty”, since privacy, if at all is a right; it would flow from “right to personal liberty” and not “right to life”. Since “right to life” encompasses socio-economic rights and the recognition of a fundamental right to privacy may undermine the socio-economic rights emanating from right to life, therefore right to privacy should not be read as a fundamental right.

This appears to be an argument specifically directed against saving the challenge to the constitutionality of the , presently pending before the Supreme Court. The Supreme Court though has rightly rejected this argument by refusing to treat “right to personal liberty” as the only possible source for right to privacy” but interestingly Justice Chandrachud by citing Prof. Amartya Sen tries to argue as to how the presence of civil and political rights augurs well for the socio-economic rights and therefore the argument of primacy of socio-economic rights over civil and political rights is not a very convincing argument. This may be true though in a larger context, in terms of cultivating a culture of not treating civil and political rights as obstacles in the realization of socio-economic goals, but it is also true that in specific cases there can be a case of conflict between the two and questions of primacy will have to be resolved. The acceptance of the Parliament’s repeal of right to property as a fundamental right by the Supreme Court, in favour of an egalitarian socio-economic regime is ample testimony to the fact that socio-economic rights have been preferred over civil and political rights by the Court in the past too. In the contemporary constitutional context it would be a case of deciding the primacy of one facet of freedom i.e. freedom or liberty as civil and political right from freedom from unfreedoms, to quote Amartya Sen who argues that denial of access to basic human needs are actually denial of freedom and hence calls it unfreedoms; i.e. which causes impediments in the realization of a life one has reason to value. Amartya Sen is his book “The Idea of Justice” has argued that the “exclusion of all economic and social rights from the inner sanctum of human rights keeping the space reserved only for liberty and other first-generation rights, attempts to draw a line in the sand that is hard to sustain.”

Viewed in this context the argument of the Union of India certainly appears to be flawed when it argued that there is no right to privacy but when one examines the possible reasons for this argument, one would find that this was primarily to negate the possibility of a challenge to the Aadhar Act, however, despite the rejection of this argument by the Supreme Court, the Aadhar Act can still be saved by arguing that right to privacy in this context must be read as subservient to the cause of better enabling of access to basic human needs and other measures directed towards good governance, which the Aadhar law ostensibly tries to ensure. It is also significant to note that for making inroads into the normative groundings of fundamental rights there need not be a constitutional amendment necessarily by the Parliament. A just, fair and reasonable law for this purpose can even be an ordinary legislation passed by the Parliament. In this context it is important to look at the observation made by the Supreme Court in Selvi v. State of Karnataka (2010) wherein the Supreme Court declared narco-analysis, brain mapping and polygraph tests conducted by the investigating agencies without the consent of the person to be violative of Article 20(3) i.e. right against self incrimination and Article 21 i.e. right to human dignity and right against torture. However, acknowledging that in certain cases subjecting accused persons to these tests may be in interest of public safety, especially in relation to the acts of terror, the Court observed that this is the task of legislature though to strike a balance between “public safety” and “personal liberty”. However, what is important to note is that even a descriptive right identified as covered within the normative sweep of fundamental right to life and personal liberty by the Supreme Court and having been identified as constitutive of human dignity can be restricted by the legislature by striking a right balance in keeping with the objective of such a legislative exercise. Let us see whether the Parliament has actually struck the right balance in enacting the Aadhar Act, between the right to privacy and the actual objectives of the Aadhar Act, which will enable the Act to pass the constitutional muster.

Manwendra Kumar Tiwari is an Assistant Professor at Ram Manohar Lohiya National Law University, Lucknow

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