English Vocab

And Then There Were Nine

In early 2014, Fali Nariman said to me in the corridors of the Supreme Court, “A government with an absolute majority will see a conformist judiciary.” Shortly thereafter, India elected a government with an absolute majority in Parliament.

Mr. Nariman prophesied based on past experiences. During the Emergency, the Supreme Court held in ADM Jabalpur that the fundamental right to life could be taken away or suspended. When asked by Justice H.R. Khanna if the right to life had been suspended during the Emergency, the then Attorney General, Niren De, had replied, “Even if life was taken away illegally, courts are helpless.” Four judges then succumbed to government power and failed to protect the citizen; Justice Khanna was the only dissenter.

The shame of that surrender has often been invoked against every judge who has subsequently held office. Justices Y.V. Chandrachud and P.N. Bhagwati, who were part of that Bench, apologised for that judgment after demitting (resign from (an office or position) office. But, as Salman Rushdie wrote: “Shame is like everything else; live with it for long enough and it becomes part of the furniture.” Judicial pusillanimity (lack of courage) in the face of an authoritarian government was not entirely unexpected.

Pattern of retreat

The last three years have seen a rather conservative Supreme Court, which bears testimony to Mr. Nariman’s aphorism. The court chose to render ineffective challenges to demonetisation by referring the issue to a Constitution Bench. When lawyers beat up former JNU Students’ Union President Kanhaiya Kumar and journalists in the precincts (zone) of Patiala House, a mere stone’s throw away from the Supreme Court, the court chose to swallow its wrath (anger). The court’s refusal to investigate the Birla-Sahara diaries, or to allow Harsh Mander’s plea to challenge Amit Shah’s discharge in a criminal case, all fit into this pattern of retreat. Possibly the sole exception was when the court struck down ((of a court) to decide that a law or rule is illegal and should be ignored) the National Judicial Appointments Commission Act.

At a time when civil liberties seemed to be again imperiled, people wondered whether the court would firmly stand on the side of the citizens who claimed that their fundamental right to privacy was being taken away by the Aadhaar database.

In response to the citizens’ challenge, the Supreme Court was told by the government that there existed no fundamental right to privacy. The government’s stand was based on M.P. Sharma (delivered by eight judges in 1954) and Kharak Singh (delivered by six judges in 1962). Both these decisions had seemingly held that there was no fundamental right to privacy in the Constitution. Later decisions of smaller Benches had, however, held and proceeded on the basis that there did exist such a right.

At least two generations of Indians grew up assuming that a fundamental right to privacy existed. But because of diverse judicial opinions, the matter had to be considered by a Bench of at least nine judges. Assembling nine judges is not an easy task given the abnormal workload and administrative disruption it causes the court. It took nearly two years for a Bench to be constituted, by which time the administration tried to compulsorily impose Aadhaar on every sphere of human activity.

The government took an extreme stand that no fundamental right to privacy existed and that the later judgments were wrongly decided. It was a submission of the sort characterised by Lord Atkin in his 1948 dissent in Liversidge v. Anderson, as an argument that “might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.” The government lost the argument 9-0.

The nine-judge Bench has unanimously (with the agreement of all people involved.) held that the right to privacy is a fundamental right and clarified years of somewhat uncertain case law on the subject. It has unequivocally held that the doctrinal (सैद्धांतिक/मत-संबंधी) premise of M.P. Sharma and Kharak Singh stand invalidated. Nearly half of the 547-page judgment has been written by Justice D.Y. Chandrachud who has recognised that “the right to privacy is an element of human dignity”. Perhaps, even more crucially, Justice Chandrachud (joined by all the others on the Bench), has explicitly overruled the ADM Jabalpur judgment to which his father was a party. The judgment is also remarkable for itsstinging (चुभता/मर्मभेदी) criticism of the court’s view in Suresh Koushal , which had upheld the validity of Section 377 of the IPC. The challenge to Section 377 is pending before a different Bench.

What the judges held

Justice J. Chelameswar writes a wonderful enunciation of the rationale (a set of reasons or a logical basis for a course of action or belief.) behind the Constitution, its Preamble, and the fundamental rights chapter. He points out that provisions purportedly conferring power on the state are, in fact, limitations on the state’s power to infringe on the liberty of citizens. Crucially, after holding that the right to privacy is a fundamental right, he states that the right to privacy includes, among other things, freedom from intrusion into one’s home, the right to choice of food and dress of one’s choice, and the freedom to associate with the people one wants to.

Justice S.A. Bobde holds that privacy is integral to the several fundamental rights recognised by the Constitution. He holds that in case of infringement, the state must satisfy the tests applicable to whichever one or more of the fundamental rights is/are affected by the interference. He also traces the right to privacy to ancient Indian texts including the Grihya Sutras, the Ramayana and the Arthashastra .

Tracing the right to privacy to the Preamble and the fundamental rights chapter of the Constitution, Justice A.M. Sapre holds that the right to privacy is born with the human being and stays until death. He also holds that the unity and integrity of the nation can only be ensured when the dignity of every citizen is guaranteed through privacy.

Justice S.K. Kaul’s opinion makes a strong case for the horizontal application of fundamental rights. He observes that “digital footprints and extensive data can be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions and hence, is valuable information.” He expresses concern over the use of such data to “exercise control over us like the ‘big brother’ state exercised.”

Justice Rohinton Nariman has rejected the Union’s argument that the right to privacy is not a fundamental right in a developing country where people do not have access to food, shelter and other resources. He holds that the right to privacy is available to the rich and the poor alike: “Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect. The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.”

In a mature democracy, conformist (अनुसारक) judiciaries are not always guaranteed to governments with a popular majority. Constitutions are enlarged and strengthened when courts act as brakes against majoritarian authoritarianism. The larger security of the state lies in the protection of every individual’s freedoms. The judges of the Supreme Court, as sentinels (a soldier or guard whose job is to stand and keep watch.) on the qui vive (on the alert or lookout.), have stood tall and repelled yet another attack on citizens’ liberties. Fali Nariman and Y.V. Chandrachud’s anxieties and reverses of the Emergency era may just have been put to rest.

1. Demit (verb): (Resign from (an office or position) (इस्तीफा देना/पदत्याग करना)

Synonyms: Abdicate, Quit, Resign, Terminate (Authority), Leave (Office).

Antonyms: Continue, Stay, Persevere.

Example: The president was forced to demit his position over allegations of corruption.

Verb forms: Demit, Demitted, Demitted.

Origin: from French démettre, from dé- ‘away from’ + mettre ‘put’.

2. Pusillanimity (noun): (Lack of courage) (कायरता/भीरुता)

Synonyms: Cowardliness, Cravenness, Faintheartedness, Fearfulness, Gutlessness.

Antonyms: Audacity, Boldness, Guts, Bravery.

Example: A pusillanimous man always cries before taking brave decisions.

Related words:

Pusillanimous (adjective) - Lacking bravery or courage

3. Precinct (noun): (The area within the walls or perceived boundaries of a particular building or place.) (उपक्षेत्र/सीमा/प्रान्त)

Synonyms: Area, Zone, Region, Enclosure, Courtyard.

Antonyms: Whole.

Example: Crime is on the rise in the north of city because there are no police to protect the precinct.

Origin: From praecingere ‘encircle’.

4. Wrath (noun): (Extreme anger.) (कोप/क्रोध/रोष)

Synonyms: Anger, Rage, Fury, Conniption, Ire.

Antonyms: Glee, Delight, Happiness, Peace.

Example: In mythology mortals generally feared the wrath of the powerful gods.

5. Strike down (phrasal verb): (To decide that a law or rule is illegal and should be ignored) (निष्फलकरना/अक्षम करना)

Synonyms: Annul, Nullify, Invalidate, Quash, Void, Negate.

Antonyms: Validate, Legalize, Approve, Ratify.

Example: The higher court can strike down the ruling of the lower court. 

Verb forms: Strike Down, Struck Down, Struck Down.

6. Doctrinal (adjective): Related to belief or collection of beliefs observed by a particular group (सैद्धांतिक/मत-संबंधी)

Synonyms: Ideological, Of principles, Of creed, Credo.

Example: Since Bob’s religion is based on a doctrine that forbids divorce, he will be barred from the church if he leaves his wife.

Related words:

Doctrine (noun) – मत

Origin: from Latin docere ‘teach’.

7. Rationale (adjective): (A set of reasons or a logical basis for a course of action or belief./ An underlying reason/ an explanation of controlling principles of opinion, belief, practice, or phenomena. (तर्काधार)  

Synonyms: Reasoning, (Logical) Basis, On the grounds of, on the justifications of.

Example: The rationale for the intense scrutiny at airports is to prevent hijackers from taking over airplanes.

Related words:

Rationalism (noun) - The practice or principle of basing opinions and actions on reason and knowledge rather than on religious belief or emotional response.

Origin: From Latin rationalis ‘endowed with reason’.

8. Conformist (noun): A person who conforms to accepted behaviour or established practices. (अनुसारक) 

Synonyms: Conventionalist, Traditionalist, Orthodox Person, Conservative, Bourgeois, Fogey, Stickler.

Antonyms: Unconventional, Uncustomary.

Example: As a religious conformist, Jason does whatever his minister tells him to do.  

Verb forms: Conform, Conformed, Conformed.

Related words:

Conform (verb) - Comply with rules, standards, or laws. 

9. Sentinel (noun): (A guard whose job is to stand and keep watch.) (पहरेदार/चौकीदार)

Synonyms: Guard, Keeper, Picket, Protector, Watchperson.

Example: At my house, my German Shepherd is the sentinel who keeps anyone from coming inside without permission.

Origin: from Italian sentinella

10. Qui vive (noun): (On the alert or lookout/ condition of heightened watchfulness or preparation for action) (सजगता)

Synonyms: Alert, Alertness, Attentiveness, Vigilance, Watchfulness.

Antonyms: Unawareness, Carelessness, Heedlessness, Inattention, Unwariness.

Example: Their duty requires most of the soldiers to be on the qui vive at the boundaries of nation.