TOPIC OF THE DAY-
“A Right For The Future”
The best works of fiction often contain a sentence that captures the essence of what the work is about regardless of how thick the full book is. So too with legal judgments, even when over 500 pages. They often have a sentence that captures its philosophical and political kernel. In Justice K.S. Puttaswamy (Retd) v. Union of India this can be found in para 121 of the judgment where Justice D.Y. Chandrachud writes, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” The sentence precedes a critique of judicial embarrassments from the U.S. and India, respectively (Buck v. Bell where the courts supported state-sponsored eugenic sterilisation and the infamous ADM Jabalpur v. Shivkant Shukla which held that there was no remedy against illegal detentions).
Burden of precedents
While there is much that will be written about the Supreme Court’s decision holding that right to privacy is a fundamental right under the Indian Constitution, I want to focus on the temporal dimension of Justice Chandrachud’s statement. What notions of time do judges call upon when deciding cases they believe will impact liberties in the future? In particular, how do we understand the nature and dilemmas of judicial innovation which — Janus-faced — is bound to the past (by the binding nature of precedent) even as it responds to unfolding and uncertain futures brought about by technological transformations of life? Let’s begin with understanding a structural problem that served as the backdrop against which a reference was made to the nine-judge Bench about whether the right to privacy is a fundamental right in India. Like in other instances such as free speech, the Supreme Court has often found itself bound by decisions of larger Benches (constituted at a much earlier time when the court’s rosters had not been as stretched as they are today). The central dilemma is, what are courts to do when they find themselves curtailed by judgments given by larger Benches which are binding by virtue of the Bench strength but otherwise wholly inadequate in terms of their jurisprudential grounding as well as their political consequences? In the present case this was manifested in the form of two judgments (M.P. Sharma, a 1954 decision of an eight-judge Bench, and Kharak Singh, a 1962 six-judge Bench decision) — both of which had held that there is no fundamental right to privacy. Kharak Singh was an ambiguous judgment, with the first half of the judgment seemingly making a case for privacy and the second half undoing itself on formal grounds. In his opinion (written on behalf of Justices J.S. Khehar, R.K. Agrawal, and S. Abdul Nazeer), Justice Chandrachud provides us with a fascinating history of the doctrinal evolution of the right to privacy to India. While M.P. Sharma and Kharak Singh had held that the right to privacy was not a fundamental right in India, the subsequent history of the doctrine as it emerged in future cases decided by smaller Benches is a story of adaptation, mutation and often fortuitousmisinterpretation. The turning point was in Gobind v. State of Madhya Pradesh (1975) where a three-judge Bench, while staying shy of declaring a right to privacy, nonetheless proceeded with the assumption that fundamental rights have a penumbral zone and the right to privacy could be seen to emerge from precisely such a zone, and they argued that if it were considered a right, it would then be restricted only by compelling public interest. In an erudite paragraph that leaps out of the judgment, Justice K. Matthew observed, “Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.” This prescient observation and its reference to the temporal dimension of problems reiterate the difficulties that courts face when yoked to dated principles and yet compelled to respond to contemporary problems. It is also equally applicable to Gobind itself, which benefitted philosophically from Griswold v. Connecticut that was decided after M.P. Sharma and Kharak Singh.
MEANINGS AND WORDS
1) Essence
Meaning: The intrinsic nature or indispensable quality of something, especially something abstract, which determines its character.
Example: Conflict is the essence of drama.
Synonyms: Quintessence, Soul, Spirit
2) Critiqued
Meaning: Evaluate (a theory or practice) in a detailed and analytical way.
Example: The authors critique the methods and practices used in the research
3) Liberty
Meaning: The state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views.
Example: Compulsory retirement would interfere with individual liberty.
Synonyms: Independence, Freedom
Antonyms: Dependence, Subjugation
4) Consigned
Meaning: Deliver (something) to a person’s keeping.
Example: He consigned three paintings to Sotheby’s.
Synonyms: Assign, Allocate
5) Embarrassments
Meaning: A feeling of self-consciousness, shame, or awkwardness.
Example: I turned red with embarrassment.
Synonyms: Awkwardness, Self-consciousness
Antonyms: Confidence
6) Eugenic
Meaning: The science of improving a population by controlled breeding to increase the occurrence of desirable heritable characteristics.
Example: I wasn’t a proponent of eugenics until I became a teacher.
7) Detentions
Meaning: The action of detaining someone or the state of being detained in official custody.
Example: The fifteen people arrested were still in police detention.
Synonyms: Custody, Imprisonment, Confinement
8) Temporal
Meaning: Relating to worldly as opposed to spiritual affairs; secular.
Example: The Church did not imitate the secular rulers who thought only of temporal gain.
Synonyms: Secular, Non-spiritual
Antonyms: Spiritual
9) Dilemmas
Meaning: A situation in which a difficult choice has to be made between two or more alternatives, especially ones that are equally undesirable.
Example: He wants to make money, but he also disapproves of it: Den’s dilemma in a nutshell.
Synonyms: Predicament, Difficulty
10) Curtailed
Meaning: Reduce in extent or quantity; impose a restriction on.
Example: Civil liberties were further curtailed.
Synonyms: Reduce, Cut
Antonyms: Increase, Lengthen
11) Jurisprudential (adjective)
Meaning: The study of law and the principles on which law is based.
Example: Canada has a jurisprudential tradition of protecting human rights.
12) Consequences
Meaning: A result of a particular action or situation, often one that is bad or not convenient.
Example: Scientists think it is unlikely that any species will actually become extinct as a consequence of the oil spill.
Synonyms: Outcome, Result
Antonyms: Cause
13) Manifested
Meaning: Be evidence of; prove.
Example: Bad industrial relations are often manifested in strikes.
Synonyms: Evidence, Indicate
Antonyms: Mask, Deny
14) Ambiguous
Meaning: Not clear or decided.
Example: The election result was ambiguous.
Synonyms: Equivocal, Ambivalent
Antonyms: Unambiguous, Clear
15) Fascinating
Meaning: Extremely interesting.
Example: A fascinating book.
Synonyms: Captivating, Absorbing
Antonyms: Boring, Dull
16) Doctrinal
Meaning: Concerned with a doctrine or doctrines.
Example: Doctrinal disputes.
17) Fortuitous
Meaning: Happening by chance rather than intention.
Example: The similarity between the paintings may not be simply fortuitous.
Synonyms: Chance, Unexpected
Antonyms: Predictable
18) Nonetheless
Meaning: In spite of that; nevertheless.
Example: The rally, which the government had declared illegal, was nonetheless attended by some 6,000.
19) Penumbra
Meaning: The part of a shadow, especially one made by something blocking the sun, in which only part of the light is blocked.
Example: In a lunar eclipse, the outer shadow or penumbra is a zone where Earth blocks a portion of the sun’s rays.
20) Compelling
Meaning: Evoking interest, attention, or admiration in a powerfully irresistible way.
Example: His eyes were strangely compelling.
Synonyms: Enthralling, Captivating
Antonyms: Boring
21) Erudite
Meaning: Having or showing great knowledge or learning.
Example: Ken could turn any conversation into an erudite discussion.
Synonyms: Learned, Well educated
Antonyms: Ignorant
22) Subtler
Meaning: (of a mixture or effect) delicately complex and understated.
Example: Subtle lighting.
Synonyms: Understand, Muted
Antonyms: Lurid, Obvious
23) Whispered
Meaning: Speak very softly using one’s breath rather than one’s throat, especially for the sake of secrecy.
Example: Alison was whispering in his ear.
Synonyms: Murmur, Mutter
Antonyms: Shout
24) Yoked
Meaning: Something that connects two things or people, usually in a way that unfairly limits freedom.
Example: Both countries had thrown off the communist yoke.
Synonyms: Harness, Hitch
Antonyms: Unhitch
25) Contemporary
Meaning: Existing or happening now.
Example: Although the play was written hundreds of years ago, it still has a contemporary (= modern) feel to it.
Synonyms: Modern, Present
Antonyms: Old-fashioned, Out of date.
