On August 24, less than two weeks after Independence Day, India’s Supreme Court magnificently articulated what our freedom really enshrines. The verdict by the nine-judge bench upheld the right to privacy as fundamental and intrinsic to life and personal liberty. But its importance is hardly limited to how the sweeping powers of the Aadhaar programme may – or may not be – restrained in the weeks to come. This scholarly order that borrows from history, economics and even contemporary poetry, is a manifesto of hope, a momentous reiteration of democracy, a celebration of the Constitution, a lesson in liberalism, an elegant but firm warning against State overreach, a new framework for equality, a rousing counter to both populism and majoritarianism, an assertion of India’s pluralism and- unusually for India- a profound acknowledgment that the individual- even if she is in a minority of one - has inalienable personal rights.
“Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life,” reads the judgment. At a time when the hectoring of television news and the reductionism of twitter have spawned hashtag herds who dare not disagree with the so-called majority view, this, in the Supreme Court judgment took my breath away: “..The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.”
These 547 pages – both remind us of the country we are meant to be – and how everything about us could now change—for the better. As the erudite Justice Sanjay Kaul points out – that’s the whole point. Comparing the constitution to a “Tree of Rights,” he writes, “While the tree appears to be great and magnificent, apparently incapable of further growth, there are always new branches appearing, new leaves and buds growing. These new rights are the rights of future generations that evolve over the passage of time to suit and facilitate the civility of posterity.” In other words, the need for the Constitution to be simultaneously eternal and ever-changing is upheld.
{{/usCountry}}These 547 pages – both remind us of the country we are meant to be – and how everything about us could now change—for the better. As the erudite Justice Sanjay Kaul points out – that’s the whole point. Comparing the constitution to a “Tree of Rights,” he writes, “While the tree appears to be great and magnificent, apparently incapable of further growth, there are always new branches appearing, new leaves and buds growing. These new rights are the rights of future generations that evolve over the passage of time to suit and facilitate the civility of posterity.” In other words, the need for the Constitution to be simultaneously eternal and ever-changing is upheld.
{{/usCountry}}How the right to privacy will be applied specifically will obviously be decided on a case by case basis. But by conflating privacy with dignity, diversity, dissent, choice and freedom, the court has widened the issue to a reading of first principles. It’s also shown enormous maturity by listing its own errors — what it calls “discordant’ notes to songs of freedom. The criminalisation of homosexuality, for one, is all set to be scrapped. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” say the judges, shunning a previous verdict. The inspiring intellectual heroism is that of Justice Dhananjay Chandrachud who, writing for four judges, overrules a draconian judgment, delivered in part by his own father former Chief Justice, YV Chandrachud. In 1976, during Indira’s Emergency, a 4: 1 ruling, which included Chandrachud Sr., decreed that habeas corpus – or the right to judicial review of a detention – could be suspended without contradicting personal liberty under article 21. Calling this order, “seriously flawed” Justice DY Chandrachud, strikes it down and also hails then lone dissenting judge HR Khanna for the “courage of his convictions.” In an environment of entrenched nepotism and dynastic politics, the sheer grace of this moment must be celebrated.
What’s remarkable about this verdict is that it pushes back against every divisive fault-line and stands up firmly against the idea of a nanny State. In words that could have far-reaching implications for beef politics as well as prohibition, Justice Chelameswar writes, “I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.” Consider the Maharashtra government’s appeal in court for the right of the police to raid and search homes of those suspected of storing beef. Now the right to privacy makes the demand untenable.
Now, one can expect a mountain of petitions challenging laws seen to be in violation of free choice. We owe gratitude to the Supreme Court for drawing a lakshman rekha against invasive State power – and for its promise – that no mob will control our thoughts. This as the Judges write is the essence of India: “Democracy accepts differences of perception, acknowledges divergences in ways of life, and respects dissent”.
Barkha Dutt is an award-winning journalist and author
The views expressed are personal