Home / Politics / Policy /  Right to Privacy: Supreme Court overrules controversial verdict from emergency era

New Delhi: The Supreme Court on Thursday overruled “expressly" the four-decades-old controversial emergency era verdict by which citizens were denied the right to approach a court to challenge detentions during the proclamation, as it held the right to privacy was a fundamental right.

In a rare instance, justice D.Y. Chandrachud, part of the nine-judge Constitution bench, overruled a verdict of 1976 pronounced by a five-judge constitution bench which included his father justice Y.V. Chandrachud.

Justice Y.V. Chandrachud went on to become as the 16th Chief Justice of India. He occupied the post for the longest period from 1978 to 1985. In 1976, the five-judge bench by a majority 4:1 verdict had decided the issue whether an order issued by the President under Article 359(1) of the Constitution suspends the right of a person to move a court for enforcement of the right to personal liberty under Article 21 upon being detained under a law providing for preventive detention.

Emergency was imposed in the country for a 21-month period from 1975 to 1977. Justice H.R. Khanna was the lone dissenting judge who had held that “the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of Emergency, would not affect the enforcement of the basic right to life and liberty".

“The judgments rendered by all the four judges constituting the majority in ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence," justice Chandrachud, who penned down the judgement for Chief Justice J.S. Khehar, justices R.K. Agrawal and S. Abdul Nazeer said.

“The view taken by justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions," he said. The top court said that these rights are, as recognised in Kesavananda Bharati case, primordial rights and constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights," he said.

Justice Chandrachud added that in the evolution of the doctrine in India, which places the dignity of the individual and freedoms and liberties at the forefront, there have been some verdicts which strike a discordant note.

While citing the ADM Jabalpur case, he said, “Right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right". The apex court said that it would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right.

“The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend," he said in his 266-page verdict.

Justice Chandrachud said the power of the court to issue a writ of Habeas Corpus (a writ requiring a person under arrest to be brought before a judge or into court) is a precious and undeniable feature of the rule of law. Elaborating on the rights, the apex court said that “a constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these most precious rights".

Justice Chandrachud said, “ADM Jabalpur decision must be and is accordingly overruled. We also overrule the decision in Union of India v/s Bhanudas Krishna Gawde, which followed ADM Jabalpur". It said that though several verdicts pronounced by apex court after the 1976 verdict “impliedly" overruled the decision of ADM Jabalpur, “We now expressly do so".

Justice R.F. Nariman, who was also on the nine-judge bench and concurred with the findings of other judges that Right to Privacy is a fundamental right, termed justice Khanna’s dissent as “remarkable".

In the footnote of his 122-page verdict, justice Nariman said that justice H.R. Khanna was in line to be next Chief Justice of India but was superseded because of the dissenting views he expressed in the judgment.

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