By Prof Upendra Baxi
Privacy is a unique constitutional concern intimately related with freedom, dignity and rights. Although the Supreme Court of India (SCI) does not more fully acknowledge its debt to the magnificent doctrine of Basic Structure in Kesavananda Bharati, the Puttaswamy decision (2017) which upholds the right to privacy (R2P) as a fundamental right as the font of all fundamental rights is eligible to be included in its normative progeny.
Extending philosopher Donna Haraway’s typification of “tentacular thought”, we can say that R2P is a tentacular right that appraises and applies to all aspects of public and private life. Being a judicially invented human right of peoples, constitutional adjudication (judicial lawmaking) will remain central to its continuing democratic and republican unfoldment.
Just as Kesavananda becomes (as I prophesised in 1974) the Indian Constitution of the future, Puttaswamy boldly and vigorously redefines the future of human rights in a mid-digital era of global information society. The judicial movement towards full and many-sided affirmation of R2P extends much beyond data protection.
The basic right of voters to know led the Supreme Court of India recently to the invalidation of the electoral bonds scheme in the title of informational/decisional privacy; it also matured in the enlargement of the rights and freedoms of sexual minorities and in decreeing the unconstitutionality of a bail condition of depositing active Google pin during the bail period with the police.
The lead opinion of Dhananjaya Chandrachud J in Puttaswamy was accepted by three Justices (JS Khehar, CJI, RK Agrawal and S Abdul Nazeer) whereas Justices J Chelameswar, SA Bobde, RF Nariman, AM Sapre and SK Kaul delivered separate concurring opinions. However, it is indubitable that R2P is now protected as an intrinsic part of the right to life and personal liberty under Article 21 and is the most fundamental to all fundamental rights.
The Court (per Chandrachud J.) explicitly regards the absence of a scripted R2P as a “separate article” as wholly immaterial since it is both a “natural right” leading to a fundamental right and is “the ultimate expression of the sanctity of the individual dignity”. But, as has been, some commentators pointed out while R2P may in general play a “liberty-enhancing” role, determination of free “consent” depends on the changeful juridical and social contexts.
R2P took a wholly unexpected turn when Justice GR Swaminathan of the Madras High Court recently (on May 17, 2024) observed in P. Naveen Kumar vs Indian Young Lawyers Association, that the petitioner has “a guaranteed fundamental right” under Article 25 (1) of the Constitution to carry out the Hindu religious vow undertaken by him at the samadhi of Sri Sadasiva Brahmendral at Nerur which is “thronged by devotees throughout the year” as an “object of veneration”. The petitioner sought permission to perform “angapradakshinam”– a ritual in which a devotee rolls over banana leaves in which other devotees had been served food on the Jeeva Samadhi day of the Saint at Nerur in Karur district. This performance was judicially prohibited in 2015.
However, Justice Swaminathan observed that “fatal vice of non-joinder of necessary parties” vitiated the order which also suffered from the directions “issued behind the back of the devotees and the trustees”; neither a notice was served nor were they heard. No opportunity was afforded to them to place their case before the Court, surely “an egregious breach of the principles of natural justice” [Para 27]. And it is settled law that the “defense of nullity can be set up” at any stage “even at the stage of execution or collateral proceedings” of enforcement. Since “the defect is incurable, waiver or laches cannot be put against the party raising the plea of nullity” [Para 31; see also Para 33].
More crucially, the Court finds it necessary to record that it was a “customary practice… for devotees to do ‘angapradakshinam’ on the banana leaves” which involved “the genuine belief of the devotees that such an act would confer on them spiritual benefit”. Based on this, the learned Justice makes an important nexus between R2P as protecting sexual and gender orientation, and one’s spiritual orientation [Para 38]. If a “person is free to express this orientation in the manner he deems fit”, provided it does not affect the rights and freedoms of others, the Court observed, then the State or the courts may not impinge on “one’s action”.
The learned single judge then quotes from the majority in the Sabarimala case (2020) to the effect that “where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided” (under Section 9 of the Civil Procedure Code or Articles 226/32 of the Constitution), the “courts should tread cautiously. This is time honoured principle and practice” [Para 37].
The Court here holds that there was “simply no evidence before the Bench of 2015” either of “violation of Article 17 of the Constitution or the right to human dignity”. However, it rules that there can be no a priori assumption “in religious matters” though in “exceptional circumstances” it may be open to make peremptory declaration as to “what is dignified and what is not”.
The Court further states that the standards set for determining whether a given ritual practice is in consonance with the principles of “constitutional morality are more rigorous than the standard set for determining whether such practice violates any of the individual provisions of Part III of the Constitution”. The person “making the assertion that the religious practice violates constitutional morality must discharge the burden”. The Court, overall, rules that the “right claimed by the petitioner is a part of his privacy right”.
The learned Justice, moreover, emphasised some “inseparable features of Tamil religious culture” by taking judicial notice of the fact that many a “devotee of Lord Muruga exhibits his piety by piercing small hooks on his tongue, lip or on the skin of one’s back in fulfilment of vow”. Likewise, “devotees of Amman undertake fire-walk, carrying of pot of burning coal etc”.
In an interesting aside, the Court articulates the view that Article 19(1)(d) of the Constitution providing all citizens the right to move freely throughout the territory of India is subject only to the reasonable restrictions envisaged under Article 19(5). However, the performance of “angapradakshinam” is also such a right which cannot be confined to walking or vehicular transportation. Accordingly, preventing the “devotees of Sri Sadasiva Brahmendral from engaging in the act of devotion would be a gross violation of the right to equality guaranteed under Article 14 of the Constitution” [Para 22].
How does one appraise such a remarkable decision? It, no doubt, offers a feast of insights into the nature of a democratic republican Indian constitutional secularism. Long ago, I had identified six features of this, which were cited with approval by the Supreme Court in Bommai case (per Justice Jeevan Reddy). Likewise, Justice Swaminathan reinforces some basic constitutional secularism features in this discourse, as so far outlined. Although the judicial discourse here was confined specifically to certain Hindu traditions and rites, what gets said about religion as a personal applied spirituality must necessarily extend to all faiths, cults, and religious traditions and communities across India.
The linkage between dignity and privacy presents some jurisprudential anxiety. Does invasion of one also result in the invasion of the other? Are there situations, in other words, where it can be otherwise? For example, may the recourse to voluntary euthanasia be considered an ERP, which will constitutionally justify self, and even community, harm?
In a 2006 case where a Jaipur-based lawyer, Nikhil Soni, sought directions under Article 226 to the central and state governments to treat Santhara, the fast unto death (practiced by Swetambara Jains; Digambars call it Sallekhana) where the practitioners carry out in stages gradually giving up solid food, liquids, and finally, even water, the Court found that while some Jain religious lay followers (besides monks and Sadhvis) recourse to vows on their deathbeds, the practice was “rare”.
Does a practice become an “ancient” practice of religion to be respected on the say so of a Justice or has it to be proved by painstaking evidence? What happens when Santhara is imposed, especially given the fact that it is available also to lay people? What happens to the constitutional right to life when life is extinguished in the name of an ancient ERP, outside the framework when “all purposes of life have been served, or when the body is unable to serve any purpose of life”? When a new fundamental right to be respected and obeyed by citizens is guaranteed by the Constitution and courts, can it be waived by agreement inter partes?
The Jaipur Bench, however, held that it was not established that Santhara or Sallekhana is an ERP and asked the State to stop it in any form. It further directed that IPC offences be proceeded with in this case. One may well ask what was “exceptional” in the Tamil situations excepting taking judicial notice?
The instant decision is a rather relaxed invocation of the doctrine of judicial notice. A little use of this doctrine is permitted, but when it is claimed that the matter in question is customary, or cultural, or even ancient, it has usually to be demonstrated by sound and cogent evidence. Certainly, ERPs are not to be postulated by adjudicatory will or judicial activism.
Second, as the R2P and dignity are held to be Article 21 rights, the question of citizen waiver of fundamental rights must be examined in some fine detail, and certainly not cursorily. Third, however wide or even amorphous one’s notion of religion may be, is the mere belief in the divinity of a saint the same as belief in God or “creator”? When may acts of worship by themselves indicate an ERP?
The Court may well be right in asserting that the performance of “angapradakshinam” is considered by some as a source of religious merit, but is it also prescribed by relevant scriptures as a divine commandment? Also that “some” may constitute a militant presence or perceived as a menacing majority: does this make a difference to evidencing essentiality? Finally, when a comprehensive review of Article 25’s interpretation by a larger bench of nine Justices is impending, was it judicially wise to bring in the R2P to determine the contours of ERP?
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer