Dissenting opinion of two Supreme Court judges in ‘Kharak Singh vs State of Uttar Pradesh, 1962’ case on right to privacy has provided substance to privacy warriors
The Supreme Court of India. The challenge over Aadhaar has been the trigger for the ongoing legal battle over right to privacy as a fundamental right. Photo: Mint
New Delhi: The challenge over Aadhaar may have been the trigger for the ongoing legal battle over privacy, but it is the dissenting opinion of two Supreme Court judges in a landmark ruling on the right to privacy delivered more than half a century ago that has provided substance to the privacy warriors.
In 1962, justices K. Subba Rao and J.C. Shah, departing from what presumably was the prevailing norm for assessing privacy, dissented from the majority view in Kharak Singh vs State of Uttar Pradesh. More than five decades on, it is their perspective on liberty, dignity and privacy that forms the basis for the apex court to revisit the judgement on the question of whether privacy is a fundamental right under the Constitution.
Hearings on the case resume on Tuesday, when the government begins its arguments.
The case also highlights the power of dissent in evolving law, penned when a judge on a bench disagrees with either the verdict or part of it or its reasoning.
In trying to determine whether or not privacy should be accorded the status of a fundamental right, a nine-judge constitution bench is focusing on two cases—M.P. Sharma vs Satish Chandra and Kharak Singh vs State of Uttar Pradesh. Both these cases held that privacy was not a fundamental right in India.
The first, a case dating back to 1954, relates to the police’s right to search and seize documents. A majority ruling held that the right to privacy was not a fundamental right under the Constitution and that such police action amounted to “temporary interference for which statutory recognition was unnecessary”.
In the second case, which was about state surveillance, the court ruled in 1962 that “privacy was not a guaranteed constitutional right”. It, however, held that Article 21 (the right to life and personal liberty) was the repository of residuary personal rights and recognized the common law right to privacy.
Subba Rao and Shah’s dissenting judgement was heard again in court. On the first day of arguments on 19 July, advocate Gopal Subramanium, arguing for the right to privacy said, “Justice Subba Rao had said that liberty is not a residual but a fully fledged right under Article 21.”
Drawing further from his dissent, Subramanium added that any state action restricting liberty must be tested both against Article 19 (right to various freedoms) and Article 21.
Subba Rao and Shah had held that the right of personal liberty in Article 21 implied the right of an individual to be free from restrictions or encroachments on his or her person, directly or indirectly. Consequently, officials extracting information from others regarding the individual would constitute an infringement of personal liberty.
“A dissenting opinion is not necessarily wrong, it may not seem relevant at that point in time but can go on to become the law later. There have been several famous dissenting judgements that have much later paved way for becoming law. The most famous one was by justice H.R. Khanna in A.D.M. Jabalpur vs Shukla, where he said that fundamental rights cannot be curtailed during an Emergency. This went to become the law. Who knows, justice Subba Rao’s dissent may end up becoming law too,” said Alok Prasanna Kumar, a lawyer and visiting fellow at think tank Vidhi Centre for Legal Policy.
First Published: Mon, Jul 24 2017. 01 00 AM IST
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