In the landmark judgment on the right to privacy, which the Supreme Court declared was a fundamental right, Chief Justice J.S. Khehar, Justice R.K. Agrawal, Justice D.Y. Chandrachud and Justice S. Abdul Nazeer made some telling observations. The full transcript of those observations follows…..reports Asian Lite News
India’s brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant.
The interpretation of the Constitution cannot be frozen by its original understanding.
The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.
Nor can judges foresee every challenge and contingency which may arise in the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past.
The Court must leave open the path for succeeding generations to meet the challenges to privacy that may be unknown today.
… it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation.
Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society.
Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities.
Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a protective shell that places them beyond the pale of ordinary legislation.
To negate a constitutional right on the ground that there is an available statutory protection is to invert constitutional theory.
In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society is unsustainable. (The court said this rejecting the Centre’s stand that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State.)
The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.
Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits.
The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court.
Civil and political rights and socio-economic rights do not exist in a state of antagonism.
The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom.
Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity enures to the benefit of those who monopolize scarce economic resources.
Civil and political rights and socio-economic rights are complementary and not mutually exclusive.
Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. (The court said this rejecting the contention that privacy is a privilege for the few)
The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.
Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value.
Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life.
The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action.
Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal.
Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.
The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present.
…the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features.