Right to Privacy – Now Public!

Alan Westin who defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” explained that “just as a social balance favoring disclosure and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures strong citadels of individual and group privacy and limits both disclosure and surveillance is a prerequisite for liberal democratic societies. The democratic society relies on publicity as a control over government, and on privacy as a shield for group and individual life.”

It was, therefore, surprising to have the former Attorney General assert that privacy is not a Fundamental Right. Privacy is a guarantee of due process providing an assurance that the government operates within the law and guarantees a fair procedure.

In fact whether the Constitution was read as a textualist would (Justice Scalia defined textulaism as an interpretation “guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time”) or whether it was construed as a Living Constitution that favours a broad not a conservative or mechanical approach “not condemning civilized society to remain under the regimen of its barbarous ancestors” the conclusion is inescapable that privacy is in fact guaranteed by the Constitution.

Privacy can be best understood by identifying an “intruder”. N A Moreham,Senior Lecturer in Law, Victoria University of Wellington in a scholarly article on privacy quoted Stanley Ben who described an intruder as one who “fails to show a proper respect for persons; he is treating people as objects or specimens — like “dirt” — and not as subjects with sensibilities, ends, and aspirations of their own, morally responsible for their own decisions, and capable, as mere specimens are not, of reciprocal relations with the observer. These resentments suggest a possible ground for a prima facie claim not to be watched, at any rate in the same manner as one watches a thing or an animal. For this is to “take liberties”, to act impudently, to show less than a proper regard for human dignity.”

Denial of privacy thus robs one of dignity. But the right to live with dignity has been held to be a core constitutional value by our Supreme Court and guaranteed by Article 21. And as privacy is an assurance of dignity the guarantee of privacy cannot but be implicit in the Constitution.

Even otherwise as Edward Bloustein says: “The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality …. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” Visibility itself provides a powerful method of enforcing norms and as Westin tellingly puts it “naked to ridicule and shame they will be put in control of those who know their secrets.” As Moreham said freedom of expression – again guaranteed by the Constitution – would lose much of its value if people do not have the chance to learn to think for themselves and have anything unique, creative and controversial to express. Similarly freedom of action and belief – also guaranteed by the Constitution – will be lost where one is kept under the spotlight and on the stage in perpetuity robbing life of its spontaneity sparkle and exuberance, pillaging imagination of its resourcefulness, curbing individual genius and even idiosyncrasies, and enforcing conformity.

The right to privacy though unspecified is yet clearly reflected in the language of the Constitution and the existing state of law also clearly showed that the society believed that such a right existed. Merely being alive and alert to this fact even without being activist was sufficient to acknowledge the same.

The utter incongruity of the exercise of constituting a Bench of Nine Judges to decide if Privacy was a Fundamental Right at the instance of the Government which denied the proposition is apparent in the wholehearted endorsement of the decision as a vindication of its stance. What then was the need to rely upon the judgments on M.P.Sharma and Kharak Singh to insist that larger benches of the Supreme Court had held privacy not to be Fundamental Right, insisting that the framers of the Constitution had expressly excluded the right from the list of Fundamental Rights and asserting that the right was merely a common law right – an argument of the Attorney General which sat rather uncomfortably with that of the Additional Solicitor General that the right was recognized in different statutes? It could have been conceded that Sharma and Kharak Singh did not lay down the law correctly, that on a contemporaneous not historical exposition of law the want of explicit inclusion of privacy as a Fundamental Right could not be considered decisive and that a common law right was elevated to the status of a Fundamental Right and clearly emerged from the guarantee of Article 21 and other facets of freedom guaranteed by Part III of the Constitution.

Split verdicts often create doubts about verdicts and are open to criticism of policy and expediency trumping law. The Supreme Court spoke in one voice in recognizing the right to privacy. The unanimous decision of the Supreme Court is a momentous moment in India’s legal history decisively showing that existence of the right to privacy as an undisputed reality and vindicating India’s position as a confident, mature and vibrant liberal democratic state.

UNIFORM CIVIL CODE, A PERSPECTIVE

While I do not feel there is any legal bar to the enactment of the Uniform Civil Code I yet think the exercise is undesirable in the manner it is sought to be implemented. The undesirability, however, has nothing to do with the “fears” of any section opposing the Code nor with any inherent illegality in the exercise and is based only on what Karl Popper referred to in The Open Society and Its Enemies as the need to fight the more urgent evils in society than the greatest ultimate good.

Uniform Civil Code will not violate any law nor transgress any bar on its enactment. Under Article 372 “existing laws” can be “altered” or “amended” by competent legislatures. I am aware of some judgments to the contrary but Personal Law cannot but be “existing law” as term “law”cannot be confined to statutory enactments and will encompass “everything acceptable as law to modern jurisprudence.” As existing laws, Personal Laws would not only be “subject to the Constitution” (even if Article 13 does not apply although I feel it does) but both the central and state legislatures would be competent to legislate on them in terms of Entry 5 of List III of the Seventh Schedule to the Constitution. Such legislation can effectuate the mandate of Article 44 of the Constitution. This exercise will achieve the objectives both of cohesion and equality which are the basic attributes of constitutional polity and are also concepts underpinning to every religion. In fact the Supreme Court itself (even while holding Part III does not touch upon Personal Laws – an observation which passed sub-silentio) recognized that Personal Law could be “altered or modified” by statute. Article 26 will not be a bar because Article 44 is as much an integral part of the Constitution and enacted along with the former. In any event freedom of religion under Article 25 itself contemplates the State “making law providing for social welfare and reform” – the professed objective behind Uniform Civil Code. In fact there is historical precedent for such enactments even under the British Rule with statutes enforcing reform applied to different religious communities. While admittedly no religion can be reformed out of existence, its practices are “subject to public order and morality”. No religion can sanction anything inherently unjust and that which is unjust is not immune from scrutiny and modification. This will conform to the mandate of Part III (Article 15(3) of the Constitution requires the State to make special provision for women and children ) and also fulfil the objectives of Part IV of the Constitution which requires the creation of a just social order. The substance of such action would have nothing to do with religion even if it may be incidentally affected. Any step to alleviate and improve their condition will only create a just social order with which no religion can have any objection.

I, however, do not feel Uniform Civil Code is necessary to enhance unity. This argument itself will disenchant a sizeable section of the population against the Code for reasons having nothing to do with the Code itself. Differences coexisting in a society is a more mature sign of unity of the society than uniformity in it. An enforced uniformity will be dangerous to unity as rejection of volition (which such enforcement will entail) will generate aversion not cohesion moving towards rejection of the compact itself. A mosaic of people can be as cohesive as a melting-pot and a vibrant pluralism of a multi-cultural society  will enhance the resilience of unity not diminish it. In any event we have uniform penal laws. Matters concerning contract, securities, banking, labour, electricity, acquisition, intellectual property, environment, consumers and transfer of property are also uniform. The procedural laws are uniform too. Almost every aspect of inter-personal relationship in the country is governed by uniform laws. In fact there is an option for uniform law even for marriage, divorce and maintenance under the Special Marriage Act, 1954. The use of this Act can be popularised and the recommendation of the Law Commission that “Special” be deleted from its title to read “Marriage Act” and all inter-religious marriages be mandatorily performed under the said Act will facilitate national integration even without a Uniform Civil Code. We definitely do not need Uniform Civil Code for our unity.

But unity is not the only objective of Uniform Civil Code. It deals also with liberty and with equality. I am surprised objection is being taken to the enactment of Uniform Civil Code as there is already much uniformity in the enforcement of laws across all religious communities. Dowry, a social evil and prevalent across communities, is punishable under a statute which applies to all. The Supreme Court has granted maintenance even to a divorced Muslim woman under Section 125 of the Criminal Procedure Code. Domestic violence, a problem across all religious communities, is again governed by a statute which makes no distinction on the basis of religion. And recently the Gujarat High Court applied the Child Marriage Restraint Act to a Muslim. Building on the consensus around that which prevails we can move incrementally in this direction by supplementing them on subjects of pressing importance like adoption and succession. The Adoption Bill was opposed by Muslims but adoption is a voluntary act of the parents and as child can only be benefited from the care and affection any law facilitating the same cannot be condemned by any reasonable individual recognising as it does freedom of choice and compassion for life. Similarly succession to property is more a means of gender empowerment than a mere religious edict. Once consensus is built on such issues the laws can be consolidated into a Code.

It will be prudent to keep in mind what Karl Popper said was “the difference between a method which can be applied at any moment, and a method whose advocacy may easily become a means of continually postponing action until a later date.” We have to ensure that insistence on Uniform Civil Code does not lead to the abandonment of such a Code altogether.