In the twists and turns of fate, there are always moments to savour. This is one such, where 9 Judges of our Supreme Court unanimously batted for a right to privacy. Reams have been devoted to the verdict both at home and abroad, and with the minute-by-minute reportage live-tweeted from the Court, this could well be the most catalogued and discussed case in Supreme Court history. It is also a positive verdict, in that the citizenry as a whole would find little to complain. Unlike the visibly polarizing judgment delivered earlier that week on triple talaq, there are no cleavages or binaries that would allow even the harshest critic to present a reasonable contra view. Such being the scenario, it is a matter of some reflection that this moment could easily not have come to be except for good fortune.
When Justice Puttaswamy moved his Writ Petition in 2012 challenging the Aadhaar scheme as ultra vires the Constitution, there was no statutory backing for the programme which sought to cast its net across the entirety of the nation’s populace. There were concerns that the information being sought from Indians gravely violated their fundamental rights and that most of them remained uninformed of the purpose of the scheme and their rights that may be affected. It was in the wake of these concerns that interim orders came to be passed restraining the Government from insisting on the Aadhaar as the sole identification document for any official purpose.
At this stage, the parameters of the debate were extremely limited, and even the most clairvoyant would not have predicted that a former High Court judge would add his name to a Kerala priest and a PM’s daughter in law in tracing the history of our constitutional law. It may be attractive for students of the law, but equally relevant to the entire nation to understand the process that converted a simple legal challenge to a hallmark for the ages.
As with all momentous events, it involves the coming together of various seemingly disparate elements at a particular point of time. Both Robert Harris and Quentin Tarantino have amused themselves (and us) by considering parallel histories of the Nazi empire – a “What If”, if you will.
It would be interesting to apply the same to the privacy litigation:
What if the Petitioners never pitched their case on the right to privacy?
The quarrel that the Petitioners had was with the taking of demographic biometric data by the Government for the purpose of the Aadhaar programme. While the main plank of the Petitioner’s case was that it violated the fundamental right to privacy under Article 21, there were other grounds of arbitrariness in Article 14, liberty under Article 19 and the non-existence of a law that backed the programme. However, on every occasion that the case was argued before benches of 2 & 3 judges by Messrs Divan and Subramaniam, an extensive effort was placed in emphasizing the violation of the right to privacy and how this could possibly be the first step in descending into an Orwellian abyss.
If in fact one of the other points had been taken, there may well have been less resistance, because norms of non-arbitrariness and liberty are so much better entrenched and easily acceptable than an ill-defined right to privacy.
In addition, nothing prevented the Petitioners from arguing that the compulsory taking of one’s biometrics violated the right to personal liberty under Article 21. It may not have been necessary to specifically link the right to biometrics to the right to privacy, and in turn claim that privacy was protected by Article 21. However, it was only because the latter course was adopted that a train of circumstances was set into motion which culminated in the judgment.
What if the Respondents never questioned the existence of privacy as a fundamental right?
On several occasions when the case had been initially listed before various benches of the Court in 2012 and 2013, the Government had only objected to the contention that the right to biometrics was a facet of privacy, but not with the existence of the fundamental right to privacy itself. It was only with the intervention of Mr. K.K.Venugopal appearing on behalf of Centre for Civil Society that a doubt was cast on whether the tracing of the right to privacy to Kharak Singh may have been an error that had remained unchecked for over 3 decades. With the new Government taking over in mid-2014, the law officers were quick to adopt this approach and contest the Petitioners’ reliance on the Kharak Singh line of cases to project a fundamental right to privacy. A fine line needed to be drawn between the actual contention, which was: “As your Lordships have stated that privacy is not a fundamental right, it cannot now be argued that it is” and the perceived one, which was: “We, the Government of India do not believe in a fundamental right to privacy, and oppose every attempt to have one established”.
Much ink and more politics has been devoted to the above dichotomy, especially with reference to the conduct of the various law officers and the ministers who instructed them over the years.
What is undoubted is that if this objection were never raised, the judgement would never have come to be.
What if the Petitioners nevertheless sacrificed that argument in favour of others?
As the Aadhaar enrolment was on at a frenetic pace, the Petitioners were quite keen that interim orders be passed urgently lest the Government fait accompli them by pointing out that the argument was only academic as almost the entire populace had been enrolled. (In fact this was precisely the tack taken by Attorney General Rohatgi who contended that more than 115 crore enrolments had taken place by May 2017). It would have thus helped the Petitioner’s strategy to give a go-by to the privacy argument and continue nonetheless on other fronts to impugn Aadhaar. This measure was adopted separately by Kerala Minister Binoy Viswam in his challenge to the mandatory PAN-Aadhaar linkage via Section 139-AA of the Income Tax Act, 1961. In its judgment [(2017) 7 SCC 59], the Court rejected the challenge while leaving the Article 21 arguments open to be canvassed after the Constitution Bench verdict. Maybe the same could have applied to the validity of the Aadhaar itself.
If the Court had quashed it on, say, the ground of there being no statutory backing (before the Act was passed), then one may have found the privacy reference being declined as academic.
What if the reference was itself declined?
As Constitutional discipline requires a clear and consistent interpretation, the invocation of a four-decade old error in appreciating Kharak Singh formed the basis of the reference that was sought. It would have been interesting if the doctrine of desuetude were invoked to state that even if Kharak Singh had frowned upon a fundamental right to privacy, that position was so long gone and in disuse that the contrary position repeatedly projected in over 20 judgements over a consistent period of time should hold the field. Consider the historical view of Lord Mackay in Brown v. Magistrate of Edinburgh, 1931 SLT (Scots Law Times Reports) 456 (458):
“I hold it clear in law that desuetude requires for its operation a very considerable period, not merely of neglect, but of contrary usage of such a character as practically to infer such completely established habit of the community as to set a counter of law or establish a quasi-repeal.”
Such a principle having been pressed into service to annul statutory law, there could have been no cavil to apply it to mere interpretation. The application of this principle in the Indian context has been expressly accepted by the Supreme Court in Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd., (1995) 3 SCC 434:
“Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the ‘dead letter’. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also Our soil is ready to accept this principle: indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become ‘dead letter’. A new path is, therefore, required to be laid and trodden.”
What if the Chief Justice was someone less decisive and independent than Justice Khehar?
From 2002, the Maharashtra rent control cases (Property Owners’ Association) have been awaiting the constitution of a 9-Judge Bench of the court to consider issues concerning Article 31-C of the Constitution.
When the Aadhaar reference was taken up by a Bench of 5 Judges headed by Chief Justice Khehar on Tuesday, the 18th of July, those assembled in Court were taken aback by the Chief Justice himself suggesting that it would be ideal for a Bench of 9 judges to hear the matter in view of the bench strengths of M.P.Sharma and Kharak Singh. The Petitioners may have at first been dismayed, having seen the 15 year wait for the Property Owners Association. Imagine their amazement then, when the Chief Justice decided that the Bench would be constituted the next day, i.e.19th July. With Messrs Agarwal, Nariman, Sapre and Kaul being added to the Bench, the Chief Justice maintained a tight rein over proceedings to ensure that such a hallmark case concluded within a mere 6 days of hearings.
What if the Bench were loaded with yes-men who did not wish to pen separate opinions?
The recent history of the Court has been rife with instances of how Chief Justices have “favourites” – those who would prefer not to countenance displeasure by open disagreement in adjudication. It is not unusual therefore for larger benches constituted by the Chief Justice with himself on it to include those who would not voice an independent view. In fact, a recent social studies report which analyzed reported Supreme Court judgments from 1950 to 2014 shows that the plummeting rate of dissent on benches with the CJI. [http://www.livelaw.in/dissenting-opinions-judges-supreme-court-india/] In ensuring that Justices Chelameswar, Nariman, Chandrachud and Kaul were on the Bench, CJI Khehar did the exact opposite – he loaded the Bench with prominent Constitutional minds and let matters take their own course.
Another shocking statistic revealed by the above study is that the Chief Justice of India has never expressed a dissenting opinion! It was thus that Chief Justice Khehar came to be the first CJI-dissenter with his judgement in the Triple Talaq case delivered 2 days earlier. In choosing not to pen a separate opinion in what he knew would be a verdict for the ages, CJI Khehar displayed great restraint and statesmanship, allowing his younger colleagues to harvest the glory that their penmanship richly deserved. Under a lesser man, this may have never come to be.
The people of India should be thankful, just as the Three Princes of Serendip were, that a series of happy accidents have brought us closer to the vision that our founding fathers had – that of a nation that was truly free and liberated.
Gopal Sankaranarayanan is an Advocate practicing in the Supreme Court of India