A right for the future: 

A right for the future: 

Context

• Understanding the nature and dilemmas of judicial innovation in the context of Right to Privacy.

Structural problem

• The Supreme Court has often found itself bound by decisions of larger Benches.
• 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.

The turning point: Gobind v. State of Madhya Pradesh (1975)

• A three-judge Bench, proceeded with the assumption that fundamental rights have a penumbral zone.
• The arguments however, if 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.”

How then do courts adapt and innovate within a set of formal constraints?

• Solomon Benjamin and R. Bhuvaneswari in their work on urban poverty argue that in contrast to visible strategies of democratic politics such as protests, the urban poor also engage in ‘politics by stealth’.
• This form of participation relies on a permeable and fluid approach that responds to stubborn structures such as the bureaucracy by sneaking up inside them, adapting and slowly transforming the structure itself.

A future-ready right

• Senior advocate Arvind P. Datar describes the judgment as articulating a right for the future — an apt characterization to which I would add a further question.
• The judgment might then be the first instance of the articulation of a human right in a post-human world.
• In that sense the location of the right to privacy within a natural rights tradition by the court seems a little archaic and romantic.
• The numerous historical references to media, urbanization and technology in the judgment intimate a judicial intuition of the transformed landscape of personhood that the language of rights has to negotiate and a recognition of the challenge of living.
• For a judgment that is refreshingly unapologetic about its philosophical and jurisprudential ambitions, one hopes that in addition to the regulars of the liberal canon.