ADM Jabalpur- Critical Analysis

Introduction-

The said case pertains to the time of Proclamation of Emergency by the then ruling

government of Indira Gandhi and Presidential order of the same was issued when election

of Indira Gandhi were termed to be illegal. The case arose out of a contention that

whether the right of a person to approach respective High Court gets quashed when his

fundamental rights are not given or suppressed, especially Article 14, and 21 during the

emergency and enforcement of such rights remain suspended for the period of

Proclamation of Emergency in force. The judgment was delivered on April 28 th, 1976 by

the Constitutional bench of five judges including the then Chief Justice A.N. Ray, out of

which four were in favour of suspension of such right and liberty and one dissenting

rejected such contention. As far as majority of the judgment goes, it was established that

a person’s right to approach High Court under Article 226 of the Indian Constitution for

Habeas Corpus or any other writ challenging the legality of an order of detention at the

time of Proclamation of Emergency remains suspended and that person cannot approach

any High Court for the remedy or get his right. This case was infamously called

as Habeas Corpus case. Till date, the decision taken by the Court holds badly on the

ground of equity, justice and good conscious. The Latin term Habeas Corpus means “you

may have the body” and writ of securing a person’s liberty is called Habeas Corpus.

Issues-

The issues in the said case were-

  Whether, under Proclamation of Emergency after President’s order, can the writ of

Habeas Corpus be maintained in High Court by a person challenging his unlawful

detention?

 Was suspension of Article 21 fit under rule of law?

 Does detenue hold locus standi in Court during the period of Emergency?

Rules-

Upon the issues, it was discussed by the State that the only purpose of Emergency in the

Constitution is to guarantee special power to the Executive machinery which can hold

discretion over the implementation of law and whatever State considers, it shall be held

valid. Filing writ petition in High Courts under Article 226 are suspended and petitioners

had no right to approach the Court for the implementation of the same and this would

have logically dismissed such petitions. The fact that Emergency provisions in Part XVIII

of the Indian Constitution including Article 358, Article 359(1) and Article 359(1A) are

necessities in regard to economy and military security of the State. The validity of the law

under Presidential Order cannot be challenged on the ground of violating fundamental

rights which were suspended by such order. This answers all the issues like “Whether,

under Proclamation of Emergency after President’s order, can the writ of Habeas Corpus

be maintained in High Court by a person challenging his unlawful detention” for which

the answer is No, one cannot approach the High Court for restoration of his fundamental

right under any Article of the Indian Constitution. Upon the issue of locus standi, the

petitioner holds no ground for any relief.

Judgment-
In view of the Presidential order dated 27 June 1975 no person has any locus standi to

move any writ petition under Article 226 before a High Court for habeas corpus or any

other writ or order or direction to challenge the legality of an, order of detention on the

ground that the order is not under or in compliance with the Act or is illegal or is vitiated

by malafides factual or legal or is based on extraneous consideration.

2. Section 16A (9) of the Maintenance of Internal Security Act is constitutionally

valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of in accordance with

the law laid down in these appeals.

The above said judgement was given by four out of five judges. They were the then Chief

Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati.

The dissenting Judgment was given by Justice Khanna who ended his judgment by

saying “As observed by Chief Justice Huges, Judges are not there simply to decide cases,

but to decide them as they think they should be decided, and while it may be regrettable

that they cannot always agree, it is better that their independence should be maintained

and recognized than that unanimity should be secured through its sacrifice. A dissent in a

Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the

intelligence of a future day, when a later decision may possible correct the error into

which the dissenting Judge believes the court to have been betrayed.” He paid the price of

his opinion when his junior M.H. Beg was appointed as Chief Justice bypassing him in
seniority. In M.M. Damnoo v. State of J&K 1 the Court required the State Government to

produce the file confining the grounds of detention so that the Court could satisfy itself

That “the grounds on which the detenu has been detained have relevance to the security

of the State”. It would, therefore, be seen that if there is a legislative provision which

prohibits disclosure of the grounds, information and materials on which the order of

detention is based and prevents the Court from calling for the production of such

grounds, information and materials, it would obstruct and retard the exercise of the

constitutional power of the High Court under Article 226 and would be void as offending

that Article.

The Foundations of Justice Khanna’s Dissent:

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this

entire way of thinking. Justice Khanna’s dissent was not based merely on a difference

with the majority about the question of whether rights existed outside the Constitution or

not. Rather, his different was more fundamental, and went to the root of what it meant to

live under a Constitutional republic. According to Justice Khanna, at the heart of a

constitutional republic was the maintenance of a balance of power between State and

individual. The issue was not whether the State may or may not abuse its powers, and the

manner in which it might abuse its power in order to violate individual liberty. The issue,

rather, was that the very existence of certain kinds of power with the State was a violation

of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the

Government’s purposes are beneficent. Men born to freedom are naturally alert to repel

1 1972 AIR 963

invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in

insidious encroachment by men of zeal, well-meaning but lacking in due deference for

the rule of few.”

And:

Whether such things actually come to pass is not the question before us; it is enough to

state that all these are permissible consequences from the acceptance of the contention

that Article 21 is the sole repository of the right to life and personal liberty and that

consequent upon the issue of the Presidential order, no one can approach any court and

seek relief during the period of emergency against deprivation of life or personal liberty.

In order words, the position would be that so far as executive officers are concerned, in

matters relating to life and personal liberty of citizens, they would not be governed by

any law, they would not be answerable to any court and they would be wielding more or

less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the

State power to both determine the state of exception, and then also to determine what

rights and remedies citizens had during such a period, simply on the invocation of salus

populi, was to make a mockery of the very idea of a constitutional republic.

Consequently, Justice Khanna rejected the argument that, in the interests of public safety

and public welfare, the Executive could be left to solely determine the scope and ambit of

rights enjoyed by citizens, noting that “the power of the courts to grant relief against

arbitrariness or absence of authority of law in the matter of the liberty of the subject may

now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that

is, the idea that during the state of exception, the Executive was vested with the sole

power of curtailing the liberty of any individual it suspected of being a threat to the

established order:

Normally, it is the past conduct or antecedent history of a person which shows a

propensity or a tendency to act in a particular manner. The past conduct or antecedent

history of a person can, therefore, be appropriately taken into account in making a

detention order. It is indeed largely from the past events showing tendencies or

inclinations of a person that an inference can be drawn that he is likely in the future to act

in a particular manner. In order to justify such an, inference, it is necessary that such past

conduct or antecedent history should ordinarily be proximate in point of time. It would,

for instance, be normally irrational to take into account the conduct an activities of a

person which took place ten years, before the date of ins detention and say that even

though after the said incident took place nothing is known against the person indicating

ins tendency to act in a prejudicial manner, even so on the strength of the said incident

which is ten years old, the authority is satisfied that ins detention is necessary. It is both

inexpedient and undesirable to lay down an inflexible test as to how far distant the past

conduct or the antecedent history should be for reasonably and rationally justifying the

conclusion that the person concerned if not detained may indulge in prejudicial activities.

The nature of the activity would have also a bearing in deciding the question of

proximity. If, for example, a person who has links with a particular’ foreign power is

known to have indulged in subversive activities when hostilities broke out with that

foreign power and hostilities again break out with that foreign power after ten years, the
authorities concerned, if satisfied on the basis of the past activities that it is necessary to

detain him with a view to preventing him from acting; in a manner prejudicial to the

security of India, might well pass a detention order in respect of that person. The fact that

in such a case there is a time lag of ten years between the activities of the said person and

the making of the detention order would not vitiate such an order. Likewise, a remote

prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an

inference that the two are a part of chain of prejudicial activities indicative of a particular

inclination. In such an event the remote activity taken along with the recent activity

would retain its relevance and reliance upon it would not introduce an infirmity. If,

however, in a given case and in the context of the nature of activity the time lag between

the prejudicial activity of a detenu and the detention order made because of that activity

is ex facie long, the detaining authority should explain the delay in the making of the

detention order with a view to show that there was proximity between the prejudicial

activity and the) detention order. If the detaining authority fails to do so, in spite of an

opportunity having been afforded to it, a serious infirmity would creep into the detention

order.

Analysis-

Upon the analysis of the judgment, there are multiple observations on the given case. The

Supreme Court in this case observed that Article 21 covers right to life and personal

liberty against its illegal deprivation by the State and in case of suspension of Article 21

by Emergency under Article 359, the Court cannot question the authority or legality of
such State’s decision. Article 358 is much wider than the Article 359 as fundamental

rights are suspended as whole whereas Article 359 does not suspend any rights. Even

being Emergency provisions under Article 359 (1) grants special power and status to the

Executive, it does not undermine the essential components of sovereignty of separation of

powers, leading to a system of check and balance and limited power of the Executive.

The nexus between State and Executive is erroneous and the effect of suspension of such

rights will only result in extra power to legislature which might create laws against

fundamental rights. This act should not be considered as a “power” of the Executive or

right of it. There is a legal extent till which a State can act in or against the citizens and in

this case, it was high misuse of power of personal political gain of a single person.

During Emergency, it is nowhere mentioned that the power of State “increases” from its

original power under Article 162. Also, State only holds the right of arrest if the alleged

act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is

unfulfilled then detention is beyond the power of State. The decision by the Supreme

Court is said to be the biggest erroneous judgment till date. The dissenting opinion of

Justice Khanna still holds more value than the majority judgment including the then

Chief Justice. The wrong intent of Indira Gandhi’s government was seen when Justice

Khanna was to ask the first uncomfortable question. “Life is also mentioned in Article 21

and would Government argument extend to it also?” There was no escape. Without

batting an eyelid Niren De answered, ‘Even if life was taken away illegally, courts are

helpless’. Before Proclamation of Emergency there was strong political instability in the

Country after the Lok Sabha election of Indira Gandhi was termed as illegal. This whole

exercise was to put opposition under pressure and during the process, even Supreme
Court made major errors in the judgement and it can be said to be purely unconstitutional.

Only the courage of single judge is said to be worth reading and it was in favour of

humanity and liberty. Justice Bhagwati was quoted as “I have always leaned in favour of

upholding personal liberty, for, I believe, it is one of the most cherished values of

mankind, without it life would not be worth living. It is one of the pillars of free

democratic society. Men have readily laid down their lives at its altar, in order to secure

it, protect it and preserve it. But I do not think it would be right for me to allow my love

of personal liberty to cloud my vision or to persuade me to place on the relevant

provision of the Constitution a construction which its language cannot reasonably bear.”

The day when this judgment was pronounced, it was termed as “darkest day of the

democracy” and it was matched with the regime and rise of Hitler. On top of all, this

judgment did not favour rule of law. As a judge, the focus is on public benefit or on

something which is good for population but this judgment seemed to favour only one

person. The judgment in this case can be compared to the judgment of Raj Narain’s case

where Indira Gandhi was given a clean chit by the Supreme Court after being held guilty

by Allahabad High Court. One can say that common man’s trust on judiciary has been

shaken by these two judgments which happened almost simultaneously. Justice Khanna

solely relied on the judgment of Makkhan Singh v. State of Punjab2 in which he noted: “If

in challenging the validity of his detention order, the detenu is pleading any right outside

the rights specified in the order, his right to move any court in that behalf is not

suspended, because it is outside Article 359(1) and consequently outside the Presidential

order itself. Let us take a case where a detenu has been detained in violation of the

mandatory provisions of the Act. In such a case, it may be open to the detenu to contend

2 1964 AIR 381

that his detention is illegal for the reason that the mandatory provisions of the Act have

been contravened. Such a plea is outside Article 359(1) and tile right of the detenu to

move for his release on such a ground cannot be affected by the Presidential order”.

Suspension of Article 21 would simply mean deprivation of right of life and liberty and

this is against the basic right along with the Articles of Universal Declaration of Human

Rights of which India is a part. This single case became example of how four able judges

of the apex court of the country made a blunder under the wrong influence of the wrong

person. The Supreme Court violated all fundamental rights with that decision. It was the

darkest hour of Indian judiciary which struck at the very heart of fundamental rights. All

four judges with the exception of Justice Khanna went on to become Chief Justices of

India. In 2011, Justice Bhagwati expressed regret by saying: “I was wrong. The majority

judgment was not the correct judgment. If it was open to me to come to a fresh decision

in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I

yielded to my colleagues. Initially, I was not in favour of the majority view. But

ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that

time, a young judge…I was handling this type of litigation for the first time. But it was an

act of weakness on my part.” Such acceptance from the judge mean how grave the

situation was that time and what impact it left on India. The apex court recalled the

comment of former Chief Justice M N Venkatachalliah in the Khanna Memorial

Lecture on February 25, 2009 that the majority decision in the Emergency case be

“confined to the dustbin of history”.

Aftermath of the judgment-

Soon after the Emergency and all which was done for it were rejected by the majority of

population in 1977, the Supreme Court in Maneka Gandhi v. Union of India 3changed

the position and gave fundamental character to the right in Article 21 by establishing a

link between Articles 14, 19 and 21 which was denied in A.K. Gopalan v. State of

Madras4 particularly in respect of Articles 19 and 21. Both these Articles cannot be

separated and not exclusive of each other. It was further contended that the object of

Presidential order under Article 359 was to remove legal problems and it was easier to

make laws against fundamental rights. The obligation of the government to act according

to the law and suspension of Article 21 did not automatically entail the suspension of rule

of law. Following Shivkant Shukla Case, the Supreme Court in Union of India v.

Bhanudas Krishna Gawde5 went one step further and held that Presidential order issued

under Article 359 were not circumscribed by any limitation and their applicability was

not dependent on fulfilment of any condition laid before. These order impose a blanket

ban on any and every judicial enquiry into validity of an order depriving someone of his

liberty, no matter how it originated whether from an order directing the detention or from

an order laying down the condition of his detention.

44th Amendment

3 1978 AIR 597

4 1950 AIR 27
5 1977 AIR 1027
The 44th amendment to the Indian Constitution was passed after the revocation of

internal emergency in 1977. It annulled many anti-democratic provisions of the 42nd

amendment enacted during the emergency. It also tried to ensure that in future, an

emergency would not be easily imposed, also added some features to prevent any future

misuse of power.

It declared that “Article 20 & Article 21 will be never suspended even during emergency

and other fundamental rights won’t suspend automatically, it needs separate order by

president”.

The majority opinion was done away with by the Constitution’s 44th Amendment two

years after the judgment was delivered. By that Amendment, Article 359 was amended to

state that where a proclamation of emergency is in operation, the President may by order

declare that the right to move any Court for the enforcement of rights conferred by Part

III of the Constitution may remain suspended for the period during which such

proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that

the right of privacy is an inalienable human right which inheres in every person by virtue

of the fact that he or she is a human being.

The majority view in the Shivkant Shukla case has been completely negatived by

44th Amendment of the Constitution as well as judicial interpretation and therefore, it is

no more longer a law. Now the enforcement of Article 20 and 21 cannot be suspended in

any situation and the Court observed that Article 21 binds not only the executive but also

the legislature and thereby correcting Justice Khanna’s stance that suspension of Article

21 relieves the legislature of its constraints but not the executive which can never deprive
a person of his life and liberty without the authority of law and such detention can be

challenged on grounds indicated in Makhan Singh Case. Articles 352 and 359 have not

been invoked since revocation of Proclamation of Emergency in 1971 and 1975 in early

1977. Also, 44th Amendment changed “internal disturbance” into “armed rebellion” and

internal disturbance not amounting to armed rebellion would not be a ground to the issue

of Proclamation of emergency. Many such provisions in 44thAmendment for proclamation

of Emergency were made so that no government in future can misuse this provision of

Constitution which was interpreted unconstitutionally by the Supreme Court.

Judgment’s Remark:

The Proclamation and arbitrary use of power by the State machinery and taking away the

personal liberty of a number of people along with judicial stamp can be considered one of

the most erroneous judgment till date. Supreme Court went on to elaborate the

interpretation of Article 21 and introduced Public Interest Litigation to gain public

legitimacy after it faced criticism over the judgment and damage it had done. The wrong

interpretation led to infringement of fundamental rights on whims and fancy of a political

figure that had her agenda to fulfil. While the judgment is said to be a mistake on many

occasions by jurists and apex court, the ruling was not overruled formally for a longer

period even after admitting the error. This was noted by the bench of Justice Ashok

Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which was

explained by Justice Khanna holds much greater force than what it was in 1976. There

has to be a clear overruling of this judgment so that theoretical nature of Rule of Law can

be made clear along with its applicability to our justice system. Also, further provisions
shall be made to ensure that no political agenda should overshadow justice and equity of

citizens.

Recent Developments:

The Supreme Court in Remdeo Chauhan v. Bani Kant Das 6, has admitted that its

notorious Emergency-era decision, ADM Jabalpur, may have violated several persons’

human rights. The court expressed its emphatic view that the majority judgment in ADM

Jabalpur was itself violative of fundamental rights. In their judgment, Justices Ganguly

and Alam reject Chauhan’s claim of inadequate representation. They point out, somewhat

unconvincingly, that Chauhan’s legal-aid counsel had filed a counter-affidavit in the

Article 32 proceedings, although they acknowledge, without additional comment, that the

lawyer had not participated in the oral arguments. The bench then discusses whether there

are other grounds to entertain the second review. After carefully reviewing applicable

case law, the bench considers whether the Court erred in admonishing the Commission

for intervening on Chauhan’s behalf. Ganguly notes that an underlying assumption of the

May 2009 decision was that the Supreme Court cannot violate human rights. This

assumption, he argues, is not correct, as it often has to correct errors by lower courts and

tribunals that breach the parties’ human rights. Ganguly then goes on to state:

“The instances of this Court’s judgment violating the human rights of the citizens may be

extremely rare, but it cannot be said that such a situation can never happen”.

Ganguly argues that Jabalpur was one such situation where there is “no doubt that the

6 (2010) 14 SCC 209

majority” violated the fundamental rights of a larger number of people. He then cites

Chief Justice Venkatachalliah’s 2009 Khanna lecture and concludes that Justice HR

Khanna’s dissent in Jabalpur became the “law of the land” after the Forty-Fourth

Amendment.

That Jabalpur was wrongly decided was no breaking news. This fact has been

acknowledged by the Court itself, most recently in Coelho v. Tamil Nadu.7 Speaking for

a nine-judge bench, Chief Justice Sabharwal conceded that that Jabalpur‘s restrictive

reading of Article 21 is no longer good law.

Right to Privacy Judgment:

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs

Union of India8 is now four-and-a-half months old. The verdict, which held that there

exists a fundamental right to privacy under the Indian Constitution, has been analysed

threadbare. Its implications for decisional autonomy, personal choice, State surveillance,

informational self-determination, and many other facets of privacy, have been debated

and discussed. In the coming months, the Supreme Court will have an opportunity to

cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these

issues. However, there is one aspect of the judgment that has received universal

approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment

in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted

to mark the “lowest point” in the Court’s history.

7 AIR 2007 SC 861

8 (2017) 10 SCC 1
Recall that ADM Jabalpur concerned the question of whether individuals who had been

preventively detained by the State had the right to approach the Courts in a habeas

corpus petition. The background context was the existence of a Presidential proclamation

of a State of Emergency; this Proclamation also suspended the the locus standi of all

individuals to move the Courts for relief, in case they were detained. A majority of the

Supreme Court held that the Presidential Proclamation had validly suspended the remedy

of habeas corpus under the Constitution; and because there existed no rights or

remedies outside the confined of the Constitution, the Presidential Proclamation acted as

a complete bar to exercising the fundamental right to life and liberty. Consequently, a

detained person could not approach the Courts arguing that his detention was illegal or

unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice

Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was

that there were certain basic rights that were recognised by the Constitution, but

not conferred by it. These rights were inalienable, and inhered in all human beings simply

by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding

in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the

existence of a right. The Presidential proclamation in question provided that the right of

any person including a foreigner to move any Court for the enforcement of the rights

conferred by Article 14, Article 21 and Article 22 of the Constitution would remain

suspended for the period of the Emergency. All four judges in the majority held that by

virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was
removed or ceased to exist; it was simply that a detenu could not approach the Court

under writ proceedings to enforce his right under Article 21.

Further ADM Jabalpur stood for the proposition that the liberty of the individual was not

a paramount value under the Constitution, but simple one among many values to be

weighed in the scales – and, in particular, always to be overriden by the principle of

“salus populi est supreme lex” (“regard for public welfare is the highest law”). For

example, Justice Beg warned against “a too liberal application of the principle that

courts must lean in favour of the liberty of the citizen, which is, strictly speaking a

principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from

the belief that individual liberty was a “gift” bestowed by the Constitution and the State,

which could be withdrawn during a state of exception. For this, all for judgments of the

majority relied upon the wartime British judgment in Liversidge vs Andersen, which

had upheld the untrammeled power of the Home Secretary to detain people, free from the

constraints of judicial review.

Operative Portion of the Judgment:

Proposition One: The decision in M P Sharma which holds that the right to privacy

is not protected by the Constitution stands over-ruled.

Recall that the reason for the initial reference was the State’s contention that the

judgments of the Supreme Court in M.P. Sharma9 (8 judges) and in Kharak Singh10 (6

judges) had held that there was no fundamental right to privacy under the Indian

Constitution, and all subsequent judgments to the contrary had been decided by smaller

9 1954 AIR 300

10 1963 AIR 1295
benches. Earlier on this blog, I had summarised the Petitioners’ arguments on why neither

of these judgments supported the State’s claim. In Puttaswamy, four out of the six

opinions examined the issue in detail, and entirely accepted the Petitioners’ arguments.

On M.P. Sharma, Justices Nariman (para 27), Chelameswar (para 7), Bobde (para 5), and

Chandrachud (para 26) all agreed that M.P. Sharma only held that the American Fourth

Amendment could not be incorporated into the guarantee against self-incrimination in the

Indian Constitution (Article 20(3)). However, the Fourth Amendment, which was limited

to protecting “the right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures” was not, and had never been,

exhaustive of the concept of privacy, even in the United States. Consequently, even

if M.P. Sharma was correct in refusing to find an analogue to the Fourth Amendment in

Article 20(3) of the Indian Constitution, that was no warrant for holding that there was no

fundamental right to privacy – a much broader and more compendious concept. In the

words of Justice Bobde:

“M.P. Sharma is unconvincing not only because it arrived at its conclusion without

enquiry into whether a privacy right could exist in our Constitution on an independent

footing or not, but because it wrongly took the United States Fourth Amendment – which

in itself is no more than a limited protection against unlawful surveillance – to be a

comprehensive constitutional guarantee of privacy in that jurisdiction.”

Proposition Two: The decision in Kharak Singh to the extent that it holds that the

right to privacy is not protected by the Constitution stands over-ruled

In Kharak Singh, the Supreme Court had considered the constitutionality of various

forms of police surveillance upon a “history-sheeter”. It had upheld reporting

requirements, travel restrictions, shadowing, and so on (by arguing, in part, that there was

no fundamental right to privacy), but had struck down nightly domiciliary visits as a

violation of “ordered liberty”.

The Court’s rejection of Kharak Singh was based on two prongs. First, it held that the

judgment was internally contradictory, because the Court could not have struck down

domiciliary visits on any other ground but that of privacy; indeed, in doing so, the Court

had itself quoted American judgments affirming a right to privacy. As Justice Nariman

noted:

“If the passage in the judgment dealing with domiciliary visits at night and striking it

down is contrasted with the later passage upholding the other clauses of Regulation 236

extracted above, it becomes clear that it cannot be said with any degree of clarity that the

majority judgment upholds the right to privacy as being contained in the fundamental

rights chapter or otherwise. As the majority judgment contradicts itself on this vital

aspect, it would be correct to say that it cannot be given much value as a binding

precedent.” (paragraph 42)

Justices Bobde (para 6), Chelameswar (para 9), and Chandrachud (para 27) agreed that

there existed a “logical inconsistency” within Kharak Singh, in that the Court could not

have struck down one facet of police surveillance without invoking the right to privacy.

Furthermore, the Justices also agreed that in any event, Kharak Singh’s finding that there

was no right to privacy under Article 21of the Constitution was based on a narrow
reading of the phrase “personal liberty”, which in turn was a relic of the judgment in A.K.

Gopalan.11 In A.K. Gopalan, the Supreme Court had adopted what Justice Chandrachud

called the “silos” approach to Part III of the Constitution, holding that each separate

clause dealt with a separate right, and each clause was hermetically sealed from all other

clauses. On this reading, “personal liberty” under Article 21 contained only what

remained after subtracting the various freedoms guaranteed in Article 19(1). The “silos

approach”, however, had been comprehensively rejected by the Supreme Court in R.C.

Cooper12, and in fact, in Maneka Gandhi13, the majority judgment in Kharak Singh had

been held to be overruled in view of this development. Consequently, as Justice

Chandrachud observed:

“The jurisprudential foundation which held the field sixty three years ago in M P Sharma

and fifty five years ago in Kharak Singh has given way to what is now a settled position

in constitutional law. Firstly, the fundamental rights emanate from basic notions of

liberty and dignity and the enumeration of some facets of liberty as distinctly protected

rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the

validity of a law which infringes the fundamental rights has to be tested not with

reference to the object of state action but on the basis of its effect on the guarantees of

freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and

must fulfil the requirement of reasonableness, imparts meaning to the constitutional

guarantees in Part III.” (para 24)

11 AIR 1950 SC 27
12 1970 AIR 564
13 Supra 3
Proposition Three: 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 the freedoms

guaranteed by Part III of the Constitution.

The rejection of the State’s claim based on M.P. Sharma and Kharak Singh was only half

the story. The affirmative case for why privacy is a fundamental right remained to be

made. At the bar, privacy was argued to be latent within liberty, autonomy, and human

dignity, apart from being foundational towards ensuring that the freedom of speech,

expression, association, and religion, remained meaningful. All these arguments figure, in

different ways, in each of the six opinions.

Justice Chelameswar, for example, grounded his opinion in the concept of liberty.

Defining “privacy” as comprising of three aspects – “repose”, “sanctuary”, and “intimate

decision”, he held that each of these aspects was central to the idea of liberty guaranteed

by both Articles 21 and 19 (paragraph 36). He then took a series of examples of privacy

violations (forced feeding, abortion, telephone tapping, and intimate association, to name

a few), and grounded them within the broader rights to freedom of the body (Article 21)

and freedom of the mind (Article 19) (paras 38 – 40).

Justice Bobde founded his judgment on “two values… the innate dignity and autonomy of

man” (para 12), which he located in the overarching structure of the Constitution. In

addition, he held that privacy was a “necessary and unavoidable logical entailment of

rights guaranteed in the text of the constitution” (para 35). In Justice Bobde’s opinion,

we find the important insight that to be effectively exercised, the liberties in Article 19(1)

(speech, expression, association, assembly, movement) and 21 (personal liberty) require,

on occasion, to be exercised in seclusion. Privacy, therefore, was “an enabler of

guaranteed freedoms” (para 29) and “an inarticulate major premise in Part III of the

Constitution.” (para 25)

Justice Nariman made an overarching argument, linking the three aspects of privacy

(bodily integrity, informational privacy, and the privacy of choice) (paragraph 81) with

the preamble of the Constitution, which guaranteed democracy, dignity, and fraternity

(paragraph 82). It was here that the constitutional foundations of privacy could be found.

The connection was drawn by him in this manner:

“The dignity of the individual encompasses the right of the individual to develop to the

full extent of his potential. And this development can only be if an individual has

autonomy over fundamental personal choices and control over dissemination of personal

information which may be infringed through an unauthorized use of such

information.” (para 85)

In other words, individual self-development – which lay at the heart of democracy,

dignity, and fraternity – was simply meaningless without a right to privacy that

guaranteed, at the minimum, security of the body, security of personal information, and

security of intimate choices.

Very similar reasoning – based on dignity and individual self-determination – was

employed by Justice Sapre, who noted that dignity imposes “an obligation on the part of

the Union to respect the personality of every citizen and create the conditions in which

every citizen would be left free to find himself/herself and attain selffulfillment.” (para 8)

It was also employed by Justice Kaul, who brought dignity and liberty together, noting
that “privacy… is nothing but a form of dignity, which itself is a subset of liberty” (para

40) and “key to the freedom of thought (para 52).

These complementary strands of reasoning were brought together by Justice

Chandrachud in his judgment. He grounded privacy in dignity (paras 32, 107, and 113),

“inviolate personality… the core of liberty and freedom” (para 34), autonomy (paras 106

and 168), liberty (para 138), bodily and mental integrity (para 168), and across the

spectrum of protected freedoms (para 169). Therefore:

“The freedoms under Article 19 can be fulfilled where the individual is entitled to decide

upon his or her preferences. Read in conjunction with Article 21, liberty enables the

individual to have a choice of preferences on various facets of life including what and

how one will eat, the way one will dress, the faith one will espouse and a myriad other

matters on which autonomy and self-determination require a choice to be made within

the privacy of the mind. The constitutional right to the freedom of religion under Article

25 has implicit within it the ability to choose a faith and the freedom to express or not

express those choices to the world. These are some illustrations of the manner in which

privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution

does not contain a separate article telling us that privacy has been declared to be a

fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed

right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without

privacy. Both reside within the inalienable values of life, liberty and freedom which the

Constitution has recognised. Privacy is the ultimate expression of the sanctity of the

individual. It is a constitutional value which straddles across the spectrum of

fundamental rights and protects for the individual a zone of choice and self-

determination.” (para 169)

There is something of tremendous significance here. Even as it agreed with the

Petitioners that privacy was a fundamental right, the Court could have chosen to give it a

narrow cast and frame. The Court may have limited it to an aspect of dignity, or restricted

it to a derivative right under Article 21. This would have thrown up difficult initial

barriers in future cases, compelling petitioners to shoehorn their claims within the

shifting and largely symbolic concept of dignity (and jurisdictions such as Canada

provide salutary warnings about how easy it is to constrict rights by pegging them to

dignity), or the (diluted) umbrella of Article 21. The Court, however, did the exact

opposite. Starting with the basic idea that privacy encompassed the body (and bodily

integrity), the mind (and informational self-determination), and intimate choices, all nine

judges agreed that privacy was at the heart of individual self-determination, of dignity,

autonomy and liberty, and concretely, inseparable from the meaningful exercise of

guaranteed freedoms such as speech, association, movement, personal liberty, and

freedom of conscience. Privacy, therefore, was both an overarching, foundational value

of the Constitution and incorporated into the text of Part III’s specific, enforceable rights.

This, in my view, is at the heart and soul of Puttaswamy, and the primary reason why this

judgment deserves to be a landmark, not only in the annals of Indian constitutional

jurisprudence, but across the world. The verdict locates privacy in the grand sweep of

democracy and within the core human values of autonomy, dignity, and freedom, while

also placing it within the realm of the concrete, the flesh-and-blood relationship between

the individual and the State. In its attention to the abstract and to the world of concepts, it
does not ignore the world in which individuals struggle against coercive State power; and

in its care to outline how privacy is concretely meaningful, it does not forget to include it

within that constellation of ideas that fame this reality and give it meaning. This is a

difficult path to travel. However, all nine judges have demonstrated the intellectual

courage required to travel it, and the result is a ringing endorsement of the central place

of privacy in a modern, constitutional, democratic republic.

Proposition Four: Decisions subsequent to Kharak Singh which have enunciated the

position in (iii) above lay down the correct position in law.

As the Petitioners had repeatedly argued before the Court, there was no need to reinvent

the wheel. After Gobind vs State of MP14, there was an unbroken line of Supreme Court

judgments, spanning forty years, that had repeatedly affirmed the status of privacy as a

fundamental right (Justice Chandrachud’s judgment examines all the precedent on the

point). Petitioners asked the Court to affirm that line of judgments. The Court agreed.

The consequences of this – which we shall discuss in some of the subsequent posts – are

that the extended discussions in the separate opinions on the scope of privacy, its

operation in the public and the private spheres, and its limitations, cannot be studied in

isolation, but in the context of forty years of case law. The task of future benches now is

to build upon this existing jurisprudence, taking into account, of course, the insights

of Puttaswamy.

14 1975 AIR 1378

Remark:

“While the privacy judgement is a cause for celebration, its full benefit will only come

when it is applied to actual state actions that undermine privacy. Adherence to

constitutional principle is not an academic exercise, but requires a prompt protection of

real rights and liberties. Judicial action should spring at moments when the state

oversteps onto the citizen. Few would dispute that determinations on privacy would be of

greater benefit when the Supreme Court protects us with foresight rather than retrospect.”

The nine-judge bench of the Supreme Court has given us an outstanding foundation for a

progressive civil liberties jurisprudence, located in ideas of liberty, dignity, autonomy,

and privacy. In the times to come, citizens will look to the Court to build upon that

foundation, and to carry through with the beginnings that it has made in Puttaswamy. But

in future, the situations that come before the Court will no longer be abstract, the

questions will no longer be purely legal, and the pressures will be real, not merely

academic. Puttaswamy only makes possible what will, in the last analysis, require judicial

courage and wisdom to accomplish: meaningful protection of the rights of the individual

against the creeping claims of the State.