It is the bold and progressive interpretation of the Living Constitutionalism theory and practice of law that holds larger potential for changing law, lives and society
The Supreme Court of India has held the Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of all the freedoms guaranteed by Part III of the Constitution, in J. KS Puttaswamy v. Union of India (2017). The impact of the case, apart from it’s implications for the Aadhaar Project, will be to determine the constitutionality of every law on basis of its conformity with the right to privacy as developed by the Court. The decision is remarkable as all 9 Judges of the Supreme Court issued a unanimous declaration on the Right to Privacy to be a fundamental right – a subject that often evokes fierce debates on limits of State and a collectivist society on individual liberty and freedom, on subjects such as the right to be let alone, reproductive and sexual health rights for women and right of consenting adult Dalit, Muslim and LGBTQ persons to form intimate relationships.
As popular discourse dubs the J. KS. Puttaswamy case as the ‘Right to Privacy’ case, it bears well to also consider that the case may more appropriately be referred to as the definitive ‘Living Constitutionalism’ case of our times. It is the bold and progressive interpretation of the Living Constitutionalism theory and practice of law that holds larger potential for changing law, lives and society. Dhananjay Chandrachud, J.’s opinion (co-signed by CJ Khehar, J., RK Aggarwal, J. and Abdul Nazeer, J.) derives its power to flesh out the ‘unwritten Constitution’ from the theory of Natural Rights.
The discourse on natural rights is set off in J. Dhananjay Chandrachud’s opinion, as the 9 judges bench ‘reads in’ the right to privacy as implicit in the Constitution of India. “Natural rights are inalienable because they are inseparable from the human personality…Natural rights are not bestowed by the State. They inhere in human beings because they are human. They exist equally in the individual irrespective of class or strata, gender or orientation…All human beings retain their inalienable rights (whatever their situation, whatever their acts, whatever their guilt or innocence)…The idea that individuals can have rights against the State that are prior to rights created by explicit legislation has been developed as part of a liberal theory of law…”
The affirmation of living Constitutionalism is also evident in J. Jasti Chelameshwar’s opinion, who unapologetically clarifies that the method clearly goes beyond the original intention and text of the framers of the Constitution.
In Shatrugan Chauhan v. Union of India (2014), the Supreme Court declared that even a person convicted under anti-terror laws deserves to seek commutation of a sentence of death on the grounds of inordinate delay in execution. The Court also declared in the same case that persons affected by a mental health condition shall not be executed, regardless of the period of onset of the condition. The Court essentially moved to protect and promote the dignity of all life. However, the doctrine of living constitutionalism may beg the question – will the Court demonstrate the same respect for all life itself when the case on constitutionality of the death penalty presents before it…“whatever their situation, whatever their acts, whatever their guilt or innocence”?
As the Supreme Court looks to the future, it also makes a plea to never forget the anti-colonial struggles and genocidal violence of our pasts. The following passage is illustrative of the Supreme Court’s sage advise to theorists and practitioners of law – the application of Constitutional law to contemporary challenges of freedom of speech, religious nationalism and economic neoliberalism must therefore be informed with the experiences of the world’s history:
“The draftsmen of the Constitution had a sense of history, both global and domestic – as they attempted to translate their vision of freedom into guarantees against authoritarian behavior. The Constitution adopted democratic form of government based on the rule of law. The framers were conscious of the widespread abuse of human rights by the authoritarian regimes in the two World Wars separated over a period of two decades. The framers were equally conscious of the injustice suffered under a colonial regime and more recently the horrors of partition. The backdrop of human suffering furnished a reason to preserve a regime of governance based on the rule of law which would be subject to democratic accountability against a violation of fundamental freedoms. The content of the fundamental rights evolved over the course of our constitutional history and any discussion of the issues of privacy, together with it’s relationship with liberty and dignity, would be incomplete without a brief reference to the course of history as it unravels in precedent. By guaranteeing the freedoms and liberties embodied in the fundamental rights, the Constitution has preserved natural rights and ring-fenced them from attempts to attenuate their existence.”
Rights of Minorities:
It is in this backdrop that one wonders if the Judges are subliminally communicating, and underhandedly urging citizens to resist unfair, unjust and unreasonable State practices and laws, as may be discernible in this passage from J. Chelameshwar’s opinion: “I only hope that this Court would have no occasion to hear an argument that the Parliament or State Legislatures would be constitutionally competent to prescribed cruel punishments like amputation or blinding or flaying alive of convicts merely on account of a prescription akin to VIIIth Amendment (of American Constitution) being absent in our Constitution.” (text supplied). If the Supreme Court believes the Union of India has no authority to provide for “flaying alive of convicts’ by Parliamentary legislation, surely it may be inclined to forthrightly prevent, redress and punish the ‘terrorism’ of gaurakshaks?
The Supreme Court relies on Suchita Srivastava v. Chandigarh Administration (2009) to elaborate on the right to privacy in context of a woman’s bodily integrity, dignity and privacy interests:
“There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”
The Supreme Court expressly clarifies that while the rationale of Suchita Srivastava was limited to the issue of access to abortion under The Medical Termination of Pregnancy Act, 1971 the observations of the Supreme Court on ‘bodily integrity, dignity and privacy’ are directly relevant to the broader issue of sexual and reproductive health rights traceable under Article 21 of the Constitution.
“It also doffs its hat at the feminist critique of privacy as a double-edged sword – while women’s rights movements have claimed ‘right to privacy’ to advance greater control over their bodies and their social and economic lives, patriarchal societies and governments have likewise misappropriated ‘right to privacy’ to resist and defeat laws and policies to prevent domestic violence by claiming the bedroom and the home as a ‘private sphere’ beyond the reach of any civilized State; at once settling the debate by affirming the former framework.”
The implications on the unresolved question of women’s rights are myriad. This not only throws down the gauntlet on the constitutionality of the marital rape exception under Section 375 of The Indian Penal Code, 1860 but may also move the State to perform it’s positive obligation to take steps to ensure the rights of women regardless of their relationship status, religion, caste, sexual orientation or gender identity, as the Supreme Court directed in context of inter-caste couples in Lata Singh v. State of Uttar Pradesh (2009).
In a remarkable moment of vindication, the Supreme Court compares the erosion and violation of fundamental rights of lesbian, gay, bisexual, transgender and queer persons to one of living under a constant state of ‘Emergency’, by equating the moral and legal legacy of Suresh Kumar Koushal v. NAZ Foundation (Supreme Court re-introduces Section 377 in full effect in 2013) to ADM, Jabalpur v. Shivkant Shukla (Supreme Court upholds suspension of all fundamental rights during Emergency of 1975-1977). ‘Sexual orientation’ is expressly read into ‘sex’ in Article 15 of the Constitution, as the Court holds sexual orientation to be a core part of right to privacy under Articles 14, 15 and 21 of the Constitution of India – thereby putting State institutions, laws and practices under the lens of anti-discrimination on basis of sexual orientation.
“Dhananjay Chandrachud’s opinion is also fully-endorsed by J. Sanjay Kishan Kaul’s opinion, making it a clear majority of 5 out of 9 judges who declare sexual orientation to be a fundamentally core part of privacy, and rule that Suresh Kumar Koushal was decided wrongly on law.”
A note of restraint: we must resist the temptation of ‘pink washing’ our institutions and the (neo)liberal elite that pack them. Less than a fortnight prior to the J. KS Puttaswamy decision and it’s profound exposition of law on the centrality of sexual orientation to our lives, the Supreme Court ordered an investigation by the National Investigation Agency in alleged ‘love jihad’ cases in Kerala, in addition to refusing to overrule the Kerala High Court decision to annul a marriage involving Hadiya @ Akhila Asokan and Shafin Jahan – mutually consenting adults of Muslim faith. The Kerala High Court ‘annulled’ the marriage supposedly on the basis that despite attaining majority of age the woman (who converted to Islam) was “weak and vulnerable and capable of being exploited in many ways” – on the wholly unsubstantiated and irrelevant ground that her husband is associated with “extremist” organizations, and the larger Islamophobic canard of ‘love jihad’. Assuming without admitting based on the current state of knowledge, even if Shafin Jahan was an active member of a banned organization, what legitimate State interest allows the Court to overrule a woman’s consent and order her to be placed in her parent’s house under police surveillance? Hadiya’s case may go on to become a contemporary and popular testament of the fact that love has always been political. This case, like the myth it uncritically relies on, has nothing to do with a religious conspiracy – and it has everything to do with our families’ and society’s fear and loathing of love and cultural diversity. It is therefore necessary to couch opposition to inter-religious and inter-caste relationships in terms of coercion, abuse and violence – but for which a reasonable person may find nothing objectionable. What happens, however, when the myth of ‘love jihad’ falls apart in open courts and media? What course may the Supreme Court take once it discovers that, perhaps – God forbid! – love is one of the most potent forces of self-deception?
A guarded caution by the Supreme Court on ‘Substantive Due Process’ to shield welfare?
As J. Rohinton Nariman appropriately remarks in Mohd. Arif v. Registrar of Supreme Court of India (2014), the wheel of ‘due process’ has turned a full circle and is now incorporated in Indian jurisprudence in the post-Maneka Gandhi era. However, J. Dhananjay Chandrachud deems it necessary to engage in some linguistic acrobatics in J. KS Puttaswamy:
“The danger of construing this as an exercise of ‘substantive due process’ is that it results in the incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of it’s origin, substantive due process has led to vagaries of judicial interpretation. Particularly, having regard to the constitutional history surrounding the deletion of that phrase in our Constitution, it would be inappropriate to equate the jurisdiction of a Constitutional Court in India to entertain a substantive challenge to the validity of a law with the exercise of substantive due process under the US Constitution. Reference to substantive due process in some of the judgments is essentially a reference to a substantive challenge to the validity of a law on the ground that it’s substantive (as distinct from procedural) provisions violate the Constitution.”
A reasonable guess suggests the Supreme Court of India is reluctant to classify the legal standard of a ‘substantive challenge to the validity of a law that it’s substantive as distinct from procedural) provisions violate the Constitution’ as simply ‘substantive due process’ because of it’s historical and ideological basis of promoting the free market in the United States of America – thereby, shielding domestic social welfare legislations such as MNREGA and Right to Food Act from constitutional challenge on the basis of the laissez faire school of economic legal theory.
A closing note on this decision’s unabashed embrace of Living Constitutionalism must appreciate J. Sanjay Kishan Kaul’s opinion. Nothing is more illustrative of this Court’s indication to assert it’s jurisdiction as a Court of last resort to safeguard minority rights particularly and fundamental rights for everybody as this passage:
“There are sure to be times in the future, similar to our experience today, perhaps as close as 10 years from today or as far off as a 100 years, when we will debate and deliberate whether a certain right is a fundamental rights or not. At that time it must be understood that the Constitution always meant to be an accommodative and all-encompassing document, framed to cover in it’s fold all those rights that are most deeply cherished and required for a peaceful, harmonious and orderly social living.”
