Acknowledging that the recent judgement by the Supreme Court doctrinally asserting the right to privacy as a fundamental right had high theoretical value in the rights jurisprudence, Kaleeswaram Raj, advocate at the SC, however, stressed the need for cautious optimism in implementation of the judgement in crisis situations.
Speaking at a two-day conference of Madurai Bench of Madras High Court Bar Association here on Sunday, he said it was one thing to assert a fundamental right doctrinally and totally another thing to uphold it when the citizenry was confronted with a political crisis and the rights were taken away as happened during Emergency.
Going by the track record, in situations where citizens’ liberty was at peril, it was doubtful whether the SC always acted as the guardian of Constitution and ensured fundamental rights of the citizens.
Mr. Kaleeswaram Raj cited a number of instances in which, according to him, the SC failed to uphold the fundamental rights of citizens.
The examples included the case regarding Communist leader A.K. Gopalan’s detention in which the SC took a narrow view of Article 21 that guaranteed protection of life and personal liberty, the ADM Jabalpur case during emergency, the death penalty awarded to Afzal Guru that came under criticism from several quarters, and even the relatively recent example of SC’s refusal to hear the bail petition of student-leader Kanhaiya Kumar and instead transferring it to Delhi High Court.
Mr. Kaleeswaram Raj, however, also highlighted that the SC did correct the negative effects of some of these judgements in other cases in later years.
Highlighting that the privacy judgement issued recently by the SC would have ramifications in a wide range of issues, including environmental laws, human rights laws, issues related to Aadhaar and many issues which could not even be foreseen now, he said it was important for the legal fraternity and citizens in general to be vigilant about how it was implemented in individual situations.
Arguing that the State was becoming mightier, all pervasive and at times even monstrous in the present era, he said that citizens’ freedom and privacy could be taken away easily.
“Instead of simply becoming ecstatic about the privacy judgement, it is important to take a critical stand of it, examine it empirically, and ensure that we practice constitutionalism where dissent and dissent alone becomes the soul of democracy,” he said.
