A nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution.

On August 24, 2017 the bench, led by Chief Justice J.S. Khehar, pronounced a unanimous judgement even if the judges   had slightly different arguments as to how privacy is intrinsic to right to life and liberty.

The bench comprised Chief Justice Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

In its 547-page judgment that declares privacy to be a fundamental right, the Supreme Court has overruled verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under the Indian constitution.

The judgment includes within it six separate judgments from different judges, though the conclusion is unanimous. The Wire has broken the main judgment into its constituent parts to make it easier to see what the different judges said. (see below)

The judgment also included a two-page final order, which states that MP Sharma and Kharak Singh are overruled, and the right to privacy is fundamental.

The lead judgment of 265 pages, authored by Justice D.Y. Chandrachud and co-signed by Chief Justice Khehar and Justices Nazeer and Agrawal states the following clear conclusions:

Conclusions of Justices J.S. Khehar, R.K. Agrawal, D.Y. Chandrachud, S. Abdul Nazeer

  1. The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.
  2. Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.
  3. (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;

(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;

(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;

(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;

(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty;

(F)Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;

(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. 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. Hence 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;

(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and

(I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.

  1. Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy would be read subject to the above principles.
  2. Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment.
  3. The reference is answered in the above terms.

 

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Triple Talaq verdict

Will there be any sane and educated Muslim or non-Muslim who will not like the judgment of the Supreme Court against the age old ritual of instant talaq making women totally helpless against whimsical and insane evocation of this provision by male counterparts. It is very reinsuring that India has one voice on this verdict- they have hailed it together irrespective of political differences.

A five-judge constitutional bench by a 3:2 majority ruled (August 22, 2017) that the practice of divorce through triple talaq among Muslims is “void”, “illegal” and “unconstitutional”. The majority verdict said any practice including triple talaq which is against the tenets of Quran in unacceptable. The three judges also said the practice of divorce through triple talaq is manifestly arbitrary and violative of the Constitution and must be struck down.

 However the dissenting judges said that muslim personal law is a matter of faith, so there should not be any interference with them. Chief Justice JS Kehar and Justice Abdul Nazeer said the practice of triple talaq “may be sinful” but the court can’t interfere in personal laws, which enjoy the status of fundamental rights under the Constitution. They said, “The Supreme Court of India today set aside the practice of talaq-e-biddat, or triple talaq, by a majority of 3:2. Chief Justice JS Kehar and Justice Abdul Nazeer said the practice of triple talaq “may be sinful” but the court can’t interfere in personal laws, which enjoy the status of fundamental rights under the Constitution. Here’s what they said:

“…We are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’.

“We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States.

When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations (see at IX – Reforms to ‘personal law’ in India), even in India, but not for the Muslims.

“We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

“Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”

However, three other judges — Justices Kurien Joseph, Rohington Nariman and UU Lalit – disagreed with the Chief Justice. Here’s what they said:

Justice Kurien Joseph: “What is bad in theology is bad in law as well”

“To freely profess, practice and propagate religion of one’s choice is a Fundamental Right guaranteed under the Indian Constitution.
That is subject only to the following- (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with
Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1).

“Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

“Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree.

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat
practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the
1937 Act, no practice against the tenets of Quran is permissible.

“Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.

“When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation.

Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Justices Rohington Nariman and UU Lalit

“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra).

“This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.

“In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”

 The Supreme Court, in its judgment declaring instant triple talaq as unconstitutional, has cited laws from 19 countries including Pakistan and Egypt which have abolished the practice. The judgment has drawn upon the book “Muslim Law in India and Abroad” by Tahir Mahmood and Saif Mahmood and has categorised countries that have done away with ‘talaq-e-biddat’ as Arab States, Southeast Asian States, and Subcontinental States. The Arab states that have laws against instant triple talaq include Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, United Arab Emirates and Yemen. The southeast Asian countries that have abolished instant triple talaq include Indonesia, Malaysia and Philippines. India’s neighbours Pakistan, Bangladesh and Sri Lanka also have enacted legislations against the practice.

The ruling and opposition parties both praised the judgment and said that it will stop injustice against women. SC urged all political parties to make legislation possible in this regard to remove this unjust provision in the personal law without being prejudiced by electoral considerations. The issue has been treated as complex because two prime considerations were involved in it- injustice against women as well as religious freedom and faith. It seems that religious faith and its independence was used by a section as pretext of continuity of this unjust practice for fear of major interference in the Muslim personal law once it is allowed. The Congress party opposed any change in the past for fear of losing its vote bank, where the Bhartiya Janata Party which is otherwise opposed to freedom to intercommunity marriage (calling it love jihad) or Valentine’s Day Celebrations in the name of cultural distortion or which supports moral policing, raised this issue for winning minority Muslims who are less rigid and also making the ardent believers inconvenient. This verdict marks a great transformation in the attitude that the entire stake holders feel that a landmark judgment has been delivered that would make the life of helpless Muslim women to have a dignified and stable married life. The SC has given a verdict which marks a great difference from what political parties did for their own reason. The reason that guided the SC in making this verdict is stopping injustice to women and their subjugation in the name of an old practice and faith. It clearly said that it is neither supported by scriptures nor modern ideals of justice.

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