Does Written Text of the Constitution not have any sanctity?

  • The alacrity with which the honourable Supreme Court constituted a 9 member bench to review “Whether Privacy is a Fundamental Right” and the release of the voluminous judgement before the retirement of Chief Justice Mr Kehar indicates that the CJI wanted a “Historic” judgement to go on record. The Court has succeeded in this objective though it has raised many other questions which could surface because of the judgement.

Though the Order was a simple order re-iterating what we all agreed and practiced that “Privacy is an important human right respected in a democratic society”, it appears that it has prepared a ground which may enable the other bench reviewing the Aadhaar Act to take a decision to strike down the Aadhaar Act as unconstitutional.

While the final order does not give any indication of such an inference, the detailed reading of some parts of the Judgement where some reflections of the judges are available,  provide such an indication.

The reflections buried in different judgments are not binding as the order itself. But there is a possibility that any reflection of even a single judge,  could be quoted in future judgments as if that is part of the views of the Nine members of the bench.

It is important for us to remember that what is outside the order is only an opinion and if it is by one or two of the judges, it should be considered as the opinion of those judges and not as a “Unanimous” or “Majority” decision.

With this background we may try to observe some of the observations contained in the judgement of honourable Justice Chelmeshwar (Pages 267-310) which need some special mention.

The Judgement notes three aspects as the crux of the enquiry namely:

1. Is there a fundamental right to Privacy under the Constitution of India?
2.If it exists, where is it located?
3.What are the contours of such right?

The Supreme Court appeared perturbed that in the Aadhar Case, the Government made a statement that in view of the M.P.Sharma and Kharak Singh judgements, “Privacy may not be considered as a Fundamental Right under the Constitution”.

The existence of some earlier judgments which held such view was considered as a hindrance for the Aadhar bench to rule otherwise. There was therefore a need to arm the Aadhar Bench with a clarification that “Privacy is Fundamental Right” so that the argument of the Government on the lines that it is not could be nipped in the bud.

The Bench was therefore categorical to state that the M.P.Singh and Kharak Singh judgments are “Over ruled”.

In order to arrive at a judgement as it finally turned out, an elaborate justification has been provided through out the 547 page judgement form 100’s of earlier cases from India and abroad.

In the process of trying to defend “Privacy” as a “Fundamental Right” which perhaps was deliberately omitted by the framers of our Constitution,  the bench arrived at a new “Principle of Interpretation of Constitution”  that “Written Text of the Constitution” has no sanctity. Despite the noble intentions of the bench to protect Privacy even against the Aadhaar legislation, I consider that this new principle of interpretation of written text of constitution is a dangerous trend and needs to be reviewed.

The essence of the argument put up by the Judge to support inclusion of Privacy” as a “Fundamental Right” was that “Whatever is written in the Constitution is valid only in the light of the interpretation that the Supreme Court may provide”. In other words, this means that the Court holds a view that Constitution is written not in the legislature but in the Court room.

This was stated in no uncertain terms in page 284 of the Judgement in the reflections of Justice Chelmeshwar where it is stated

“To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled cannons of constitutional interpretation.”

The statement of Justice Chelmeshwar legitimizes the right of the Court to ignore the words of text used in the Constitution and give any meaning as the majority of judges of a bench agree upon.

It is difficult to agree with this contention that there is no “sanctity” in the words of the written constitution since if this is extended to other aspects of constitution, the respect for the Constitution may be in jeopardy.

Fortunately this is the reflection of only one of the 9 judges and not a part of the nine member order and it has to be treated as such.

Additionally, there is inherent contradictions within the judgement which also says

“The Constitution ….is a testament created for securing the goals professed in the Preamble…… ‘We the People’ of this country are the intended beneficiaries of the Constitution. It must be seen as a document written in the blood of innumerable martyrs..” etc.

If Constitution is a document written in blood of the martyrs, can what is omitted to be written be considered casually and inserted as an interpretation?…..

Should not the Bench asked the Government to amend the Constitution by adding the specific words into the Constitution and preserved the sanctity of the written text?

While the Court is quick to point out that the Government does not have the right to amend the Constitution easily, it asserts it’s own right to interpret it in a manner which is not written and what had been earlier upheld by M.P.Singh and Kharak Singh judgement.

This appears to a judicial over reach to usurp the function of a legislature which could be accomplished only with a two third majority perhaps with the approval of the majority of State legislatures.

At one place the Judgement says that “… Rights arise out of custom, contract or legislation, including a written Constitution…” but it does not accept that in Indian Custom, health information is not considered a “Private Information” and not sharing health condition with relatives is considered as a “Rejection of closeness of relationship”.

This thought that “though Privacy is not part of the written constitution in Part III, it should be implied” runs through the judgement and ends with a declaration that “Privacy is a Fundamental Right”.

The judgement will definitely create a hurdle for the Government in making any legislation in future since the Courts may take a view that some thing in the proposed law violates “Privacy” and therefore cannot be considered valid.

It will be a running battle for the Government to convince the Supreme Court for each of its legislation even if they are passed by both houses of Parliament.

It appears that what Mr Kapil Sibal as a senior functionary of Congress could not achieve in the Rajyasabha seems to have achieved by arguing in the Court and getting a favourable judgment.

To ordinary citizens however, it appears that the Judgement is an assertion of the Judiciary that their interpretation is supreme whether some thing is written or omitted in any law.

The judgment seriously undermines the power of legislature and leaves them with no power to make any law since even what is not written in the Constitution can be imputed by a group of Judges if they are in sufficient number.

Now this principle that “Written words in the Constitution is subordinate to the interpreted views of the majority of the judicial bench” will reflect in the Ram Janmabhoomi judgement or Uniform Civil Code or Special Status of Kashmir etc. In future even if a Constitutional amendment is passed by the Parliament, the judiciary can still use its “Power to Interpret” and give meaning which is not an intention of the legislature.

This could be one of the undesirable impacts of this Judgement.

In the light of the developments, I foresee that the Aadhaar Act will come under a serious threat of rejection in the coming days and cause a serious embarrassment to the Modi Government. Government needs to be prepared for this reverse. In the past we have seen legislature making retrospective laws.

In this judgement, Supreme Court paused the Aadhaar case and altered the judicial environment  for a case under process with this order. It was in effect like retrospective legislation and represented creative thinking of the outgoing CJI.


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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