Can SC Read A New Fundamental Right Into The Constitution?

It is one thing for the Supreme Court (SC) to order CNG buses in Delhi to end vehicular pollution but quite another to read a new fundamental right – right to privacy – into the Constitution of India. The top court has often been criticised for its judicial overreach or judicial activism in the face of executive apathy or tardiness by the constitutional purists, who aver that the constitutional demarcation of powers of legislature, executive and judiciary is too sacrosanct to be violated or trifled with. To be sure, the judiciary with its power to review the constitutionality of a law enjoys a slight edge over the other two branches of government but that does not mean the SC can become the law-maker. Not even on the plausible and facile but dangerous ground that the SC is better equipped vis-à-vis the Parliament to make laws.

While the law laid down by the SC is the law of the land, the latitude and supremacy does not confer on the highest judiciary of the country the right to make laws howsoever compelling the circumstances – the latitude allowed is only in interpreting the law made by the legislature.

Against this backdrop, it is worth examining if the SC was right in carving out a new fundamental right on 24th August 2017. That it was a unanimous verdict by a nine-member Constitution bench declaring that right to privacy is indeed a fundamental right should make one circumspect in his criticism. Yet, there is considerable merit and weight in the submission of the former attorney general Mukul Rohatgi that the SC has set a bad precedent as well – there could be more and more fundamental rights read into the Constitution.

To be sure, the Constitution itself is not immutable. Indeed it cannot be allowed to be caught in a time warp. At last count, it was amended 101 times. But each of those amendments was carried out by the Parliament with the requisite state assembly consent. The letter of the constitutional provisions indeed is not cast in stone in the sense that experience if not expediency may warrant and necessitate changes to them. The SC itself has in the famous Keshavanand Bharti case circumscribed the parliamentary power to amend the Constitution by saying its basic structure should not be altered or disturbed. In the event, therefore, if anyone can make changes to the Constitution, it is the Parliament.

The SC would have steered clear of the charge of overreach had it merely confined itself to recommending to the Parliament the need to add a new fundamental right to privacy in the Constitution. And it would then have been upto the Parliament to demur politely or act on the advice. Parenthetically, such a course would have suited the opposition cause as well because it could have gone to town with fresh ammunition against the ruling dispensation – what a gall, intolerance of even the SC advice! But what it has done is steamroll its views into the Constitution, thus in the process substituting the views of the Constitution makers with its own. Remember the Constitution makers debated and decided against carving out right to privacy as a standalone and independent fundamental right. In other words, they saw merit in ambiguity in this regard.

It is one thing for the SC to read down or completely strike down an act of Parliament or state legislature on the ground that it violates a canon of natural justice. It can also read into such a law a clause to make it work and remove executive highhandedness but carving out a new fundamental right to privacy, even if it tacitly emerges from the integrated reading of other fundamental rights, chiefly the right to liberty, was never contemplated by the Constitution makers nor is it one of the inherent powers of the SC.

The SC has in the past batted in favour of gays and live-in relationships even in the absence of an explicit fundamental right to privacy. It could have continued in the same vein. It has needlessly rocked the constitutional boat. Furthermore, the United Progressive Alliance government made two laws – Right to Education and Right to Information – without adding them to chapter III of the Constitution on fundamental rights. It wisely did so because elevating them to the status of fundamental rights would have come to haunt it one day. This is not to suggest governments must shy away from their responsibilities or give inferior rights to its citizens. The point is it must be left to the Parliament and the executive to decide. The courts should not sit in judgment over matters of administration and governance.

Those hailing the verdict say it has strengthened the Indian democracy but time alone will tell if it has instead sown the seeds of weakening it by subversive elements hiding and lurking behind the veneer of right to privacy.