‘Three great dissents’ find place in Supreme Court’s privacy verdict

Justice RF Nariman, a member of the nine-judge constitution bench which held right to privacy as intrinsic part of Article 21 of the Constitution, recalled the three former judges for their “Three Great Dissents”.

The Supreme Court on Thursday lauded its three former judges, Justices Saiyid Fazl Ali, Subba Rao and H R Khanna, for their “vision” and “dissents” from their colleagues to protect the rights of individuals, as it held right to privacy as a fundamental right.

The Supreme Court building in New Delhi.(AP file)

Justice RF Nariman, a member of the nine-judge constitution bench which held right to privacy as intrinsic part of Article 21 of the Constitution, recalled the three former judges for their “Three Great Dissents”.

Justices Fazl Ali, Subba Rao and Khanna were Supreme Court judges from 1950-51, 1958-67 and 1971-77 respectively.

“Article 21, with which we are directly concerned, was couched in negative form in order to interdict State action that fell afoul of its contours. This article, which houses two great human rights, the right to life and the right to personal liberty, was construed rather narrowly by the early Supreme Court of India.

“But then, there were judges who had vision and dissented from their colleagues. This judgment will refer to three great dissents by Justices Saiyid Fazl Ali, Subba Rao and Khanna,” he said in his 122-page verdict which formed part of the 547-page judgement.

The first great dissent referred to by Justice Nariman was by Justice Fazl Ali in the case of A K Gopalan vs State of Madras, 1950. Justice Nariman went on to say that the foresight of Justice Fazl Ali “simply takes our breath away”.

The subject matter of challenge in the case of AK Gopalan, a communist leader, was the validity of certain provisions of the Preventive Detention Act of 1950.

It was decided in the Gopalan case that free speech and expression was guaranteed by Article 19(1)(a) and was hence excluded from personal liberty under Article 21.

Justice Ali, in his dissent from other judges of bench, had adopted the view that fundamental rights are not isolated and separate but protect a common thread of liberty and freedom.

“On all counts, his words were a cry in the wilderness. Insofar as his vision that fundamental rights are not in distinct water-tight compartments but do overlap, it took twenty years for this Court to realise how correct he was...,” Justice Nariman said.

In the second great dissent, Justice Nariman referred to Justice Subba Rao’s dissent in Kharak Singh vs State of UP, which had a direct bearing on the question decided by the nine-judge bench on Thursday.

In the Kharak Singh judgement, Regulation 237 of the UP Police Regulations was challenged as violating fundamental rights under Article 19(1)(d) and Article 21.

The decision in Kharak Singh case invalidated domiciliary visits at night authorised by Regulation 236(b), finding them to be an unauthorised intrusion into the home of a person and a violation of the fundamental right to personal liberty.

However, Justice Rao in his dissenting views said that the rights conferred by Part III have overlapping areas.

“Where a law is challenged as infringing the right to freedom of movement under Article 19(1)(d) and the liberty of the individual under Article 21, it must satisfy the tests laid down in Article 19(2) as well as the requirements of Article 21”, Justice Subba Rao had said.

All six judges had struck down sub-para (b), but Justice Subba Rao joined by Justice Shah, struck down the entire Regulation as violating the individual’s right to privacy.

At a footnote, Justice Nariman alludes to the farewell speech of Chief Justice SR Das: “Chief Justice SR Das in his farewell speech had this to say about Justice Subba Rao, ‘Then we have brother Subba Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill-conceived judgments of his colleagues which require reconsideration.”

The third great dissent referred to by Justice Nariman was the judgement by HR Khanna in ADM Jabalpur vs SS Shukla which he termed as “remarkable”.

In the footnote of the verdict, he said that Justice HR Khanna was in line to be next Chief Justice of India but was superseded because of this dissenting views in the judgment.

He went on saying that “developments after this judgment have also made it clear that the majority judgments are no longer good law and that Justice Khanna’s dissent is the correct version of the law.”

In the ADM Jabalpur case of 1976, the five-judge bench by a majority verdict 4:1 had arrived at the conclusion that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether.

Emergency was imposed in the country for a period of 21- month from 1975 to 1977. Justice HR Khanna was lone dissenting judge who had held that “the suspension of the right to move any Court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty”.