On 17 March 1947, K M Munshi submitted Draft articles on the fundamental rights and duties of citizens to the Sub-committee on fundamental rights. Among the rights of freedom proposed in clause 5 were the following[1]:
“…
(f) the right to the inviolability of his home,
(g) the right to the secrecy of his correspondence,
(h) the right to maintain his person secure by the law of the Union from exploitation in any manner contrary to law or public authority…”
On 24 March 1947, Dr Ambedkar submitted a Memorandum and Draft articles on the rights of states and minorities. Among the draft articles on fundamental rights of citizens was the following:
…10. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized…”
The draft report of the Sub-committee submitted on 3 April 1947 contained a division between the fundamental rights into justiciable and non-justiciable rights. Clause 9(d) and Clause 10 provided as follows:
“9(d) The right of every citizen to the secrecy of his correspondence. Provision may be made by law to regulate the interception or detention of articles and messages in course of transmission by post, telegraph or otherwise on the occurrence of any public emergency or in the interests of public safety or tranquillity…
10. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
Dr B N Rau in his notes on the draft report had reservations about clause 10 which were expressed thus:
“Clause 10. If this means that there is to be no search without a court’s warrant, it may seriously affect the powers of investigation of the police. Under the existing law, eg., Criminal Procedure Code, section 165 (relevant extracts given below), the police have certain important powers.
Often in the course of investigation, a police officer gets information that stolen property has been secreted in a certain place. If he searches it at once, as he can at present, there is a chance of his recovering it; but he has to apply for a court’s warrant, giving full details, the delay involved, under Indian conditions of distance and lack of transport in the interior may be fatal.”
A note was submitted by Sir Alladi Krishnaswamy Iyer on 10 April 1947 objecting to the ‘secrecy of correspondence’ mentioned in clause 9(d) and the protection against unreasonable searches in clause 10:
“Clause (d). In regard to secrecy of correspondence I raised a point during the discussions that it need not find a place in chapter on fundamental rights and it had better be left to the protection afforded by the ordinary law of the land contained in the various enactments.
There is no such right in the American Constitution. Such a provision finds a place only in the post-First World War constitutions. The effect of the clauses upon the sections of the Indian Evidence Act bearing upon privilege will have to be considered. Restrictions -vide chapter 9, s 120-127. The result of this clause will be that every private correspondence will assume the rank of a State paper, or, in the language of s. 123 and 124, a record relating to the affairs of State.
A clause like this might checkmate the prosecution in establishing any case of conspiracy or abetment, the plaintiff being helpless to prove the same by placing before the court the correspondence that passed between the parties which in all these cases would furnish the most material evidence. The opening words of the clause “public order and morality” would not be of any avail in such cases.
On a very careful consideration of the whole subject I feel that inclusion of such a clause in the chapter on fundamental rights will lead to endless complications and difficulties in the administration of justice. It will be for the committee to consider whether a reconsideration of the clause is called for in the above circumstances. Clause 10.
Unreasonable searches, In regard to this subject I pointed out the difference between the conditions obtaining in America at the time when the American Constitution was drafted and the conditions in India obtaining at present after the provisions of the Criminal Procedure Code in this behalf have been in force for nearly a century.
The effect of the clause, as it is, will be to abrogate some of the provisions of the Criminal Procedure Code and to leave it to the Supreme Court in particular cases to decide whether the search is reasonable or unreasonable. While I am averse to reagitating the matter I think it may not be too late for the committee to consider this particular clause.”
During the course of the comments and suggestions on the draft Constitution, Jaya Prakash Narayan suggested the inclusion of the secrecy of postal, telegraphic and telephonic communications. Such an inclusion was, however, objected to on the following grounds[2]:
“…It is also hardly necessary to include secrecy of postal, telegraphic and telephonic communications as a fundamental right in the Constitution itself as that might lead to practical difficulties in the administration of the posts and telegraph department.
The relevant laws enacted by the Legislature on the subject (the Indian Post Office Act, 1898 and the Indian Telegraph Act, 1885) permit interception of communications sent through post, telegraph or telephone only in specified circumstances, such as, on the occurrence of an emergency and in the interests of public safety.”
Eventually, clause 9(d) and clause 10 were dropped from the chapter dealing with fundamental rights. This discussion would indicate that there was a debate during the course of the drafting of the Constitution on the proposal to guarantee to every citizen the right to secrecy of correspondence in clause 9(d) and the protection to be secure against unreasonable searches and seizures in their persons houses, papers and assets.
The objection to clause 9(d) was set out in the note of dissent of Sir Alladi Krishnaswamy Iyer and it was his view that the guarantee of secrecy of correspondence may lead to every private correspondence becoming a state paper. There was also a feeling that this would affect the prosecution especially in cases of conspiracy or abetment. Similarly, his objection to clause 10 was that it would abrogate some of the provisions of the Code of Criminal Procedure.
B N Rau likewise stated that this would seriously affect the powers of investigation of the police. The clause protecting the secrecy of correspondence was thus dropped on the ground that it would constitute a serious impediment in prosecutions while the protection against unreasonable searches and seizures was deleted on the ground that there were provisions in the Code of Criminal Procedure, 1898 covering the area.
The debates of the Constituent Assembly indicate that the proposed inclusion (which was eventually dropped) was in two specific areas namely correspondence and searches and seizures. From this, it cannot be concluded that the Constituent Assembly had expressly resolved to reject the notion of the right to privacy as an integral element of the liberty and freedoms guaranteed by the fundamental rights.
The Constitution has evolved over time, as judicial interpretation, led to the recognition of specific interests and entitlements. These have been subsumed within the freedoms and liberties guaranteed by the Constitution. Article 21 has been interpreted by this Court to mean that life does not mean merely a physical existence. It includes all those faculties by which life is enjoyed. The ambit of ‘the procedure established by law’ has been interpreted to mean that the procedure must be fair, just and reasonable.
The coalescence of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the inter-relationship between rights. That is how the requirements of fairness and non-discrimination animate both the substantive and procedural aspects of Article 21. These constitutional developments have taken place as the words of the Constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the rule of law.
India’s brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.
Nor can judges foresee every challenge and contingency which may arise in the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past. Hence as Judges interpreting the Constitution today, the Court must leave open the path for succeeding generations to meet the challenges to privacy that may be unknown today.
The impact of the decision in Cooper is to establish a link between the fundamental rights guaranteed by Part III of the Constitution. The immediate consequence of the decision is that a law which restricts the personal liberties contained in Article 19 must meet the test of permissible restrictions contemplated by Clauses 2 to 6 in relation to the fundamental freedom which is infringed.
Moreover, since the fundamental rights are inter-related, Article 21 is no longer to be construed as a residue of rights which are not specifically enumerated in Article 19. Both sets of rights overlap and hence a law which affects one of the personal freedoms under Article 19 would, in addition to the requirement of meeting the permissible restrictions contemplated in clauses 2 to 6, have to meet the parameters of a valid ‘procedure established by law’ under Article 21 where it impacts on life or personal liberty.
The law would be assessed not with reference to its object but on the basis of its effect and impact on the fundamental rights. Coupled with the breakdown of the theory that the fundamental rights are water-tight compartments, the post Maneka jurisprudence infused the test of fairness and reasonableness in determining whether the ‘procedure established by law’ passes muster under Article 21.
At a substantive level, the constitutional values underlying each article in the Chapter on fundamental rights animate the meaning of the others. This development of the law has followed a natural evolution.
The basis of this development after all is that every aspect of the diverse guarantees of fundamental rights deals with human beings. Every element together with others contributes in the composition of the human personality. In the very nature of things, no element can be read in a manner disjunctive from the composite whole.
The close relationship between each of the fundamental rights has led to the recognition of constitutional entitlements and interests. Some of them may straddle more than one, and on occasion several, fundamental rights.
Yet others may reflect the core value upon which the fundamental rights are founded. Even at the birth of the Constitution, the founding fathers recognised in the Constituent Assembly that, for instance, the freedom of speech and expression would comprehend the freedom of the press. Hence the guarantee of free speech and expression has been interpreted to extend to the freedom of the press.
Recognition of the freedom of the press does not create by judicial fiat, a new fundamental right but is an acknowledgment of that, which lies embedded and without which the guarantee of free speech and expression would not be complete.
Similarly, Article 21 has been interpreted to include a spectrum of entitlements such as a right to a clean environment, the right to public health, the right to know, the right to means of communication and the right to education, besides a panoply of rights in the context of criminal law and procedure in matters such as handcuffing and speedy trial. The rights which have been held to flow out of Article 21 include the following:
(i) The right to go abroad – Satwant Singh Sawhney v D Ramarathnam APO New Delhi[3].
(ii) The right against solitary confinement – Sunil Batra v Delhi Administration[4].
(iii) The right of prisoners against bar fetters – Charles Sobraj v Supdt. Central Jail[5].
(iv) The right to legal aid – M H Hoskot v State of Maharashtra[6].
(v) The right to speedy trial – Hussainara Khatoon v Home Secretary, State of Bihar[7].
(vi) The right against handcuffing – Prem Shankar Shukla v Delhi Administration[8].
(vii) The right against custodial violence – Sheela Barse v State of Maharashtra[9].
(viii) The right against public hanging – A G of India v Lachma Devi[10].
(ix) Right to doctor’s assistance at government hospitals – Paramanand Katara v Union of India[11].
(x) Right to shelter – Shantistar Builders v N K Totame[12].
(xi) Right to a healthy environment – Virender Gaur v State of Haryana[13].
(xii) Right to compensation for unlawful arrest – Rudal Sah v State of Bihar[14].
(xiii) Right to freedom from torture – Sunil Batra v Delhi Administration[15].
(xiv) Right to reputation – Umesh Kumar v State of Andhra Pradesh[16].
(xv) Right to earn a livelihood – Olga Tellis v Bombay Municipal Corporation[17].
Neither is this an exercise in constitutional amendment brought about by judicial decision nor does it result in the creation of a new set of fundamental rights. The exercise has been one of interpreting existing rights guaranteed by the Constitution and while understanding the core of those rights, to define the ambit of what the right comprehends.
The draftsmen of the Constitution had a sense of history- both global and domestic– as they attempted to translate their vision of freedom into guarantees against authoritarian behaviour. The Constitution adopted a democratic form of government based on the rule of law. The framers were conscious of the widespread abuse of human rights by authoritarian regimes in the two World Wars separated over a period of two decades.
The framers were equally conscious of the injustice suffered under a colonial regime and more recently of the horrors of partition. The backdrop of human suffering furnished a reason to preserve a regime of governance based on the rule of law which would be subject to democratic accountability against a violation of fundamental freedoms.
The content of the fundamental rights evolved over the course of our constitutional history and any discussion of the issues of privacy, together with its relationship with liberty and dignity, would be incomplete without a brief reference to the course of history as it unravels in precedent. By guaranteeing the freedoms and liberties embodied in the fundamental rights, the Constitution has preserved natural rights and ring-fenced them from attempts to attenuate their existence.
Technology, as we experience it today is far different from what it was in the lives of the generation which drafted the Constitution. Information technology together with the internet and the social media and all their attendant applications have rapidly altered the course of life in the last decade. Today’s technology renders models of application of a few years ago obsolescent.
Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance.
Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering.
Reference
An Excerpt from K.S. Puttaswamy v. Union of India (2017)
[1] B. Shiva Rao, The Framing of India’s Constitution, Indian Institute of Public Administration (1967), Vol. 2, at
page 75
[2] 7 B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institute of Public Administration (1968), at
pages 219-220
[3] (1967) 3 SCR 525
[4] (1978) 4 SCC 494
[5] (1978) 4 SCC 104
[6] (1978) 3 SCC 544
[7] (1980) 1 SCC 81
[8] (1980) 3 SCC 526
[9] (1983) 2 SCC 96
[10] (1989) Suppl.(1) SCC 264
[11] (1989) 4 SCC 286
[12] (1990) 1 SCC 520
[13] (1995) 2 SCC 577
[14] (1983) 4 SCC 141
[15] (1978) 4 SCC 494
[16] (2013) 10 SCC 591
[17] (1985) 3 SCC 545