Parivarthan

Read Between the Lines [29-4-20]

Read between the lines is to encourage aspirants to self study and refocus on the newspapers instead of totally depending on third party sources for their preparation.

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In his now-legendary dissenting judgment, delivered at the height of Indira Gandhi’s Emergency, Justice H.R. Khanna, invoking Justice Brandeis of the U.S. Supreme Court, wrote that “[the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”

The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India (2017) is renowned for its incantation, that each of us is guaranteed a fundamental right to privacy. But the Court also recognised that the Constitution is not the sole repository of this right, or indeed of the right to personal liberty. For these are freedoms that inhere in all of us. The Court additionally thought it important, as Justice S.K. Kaul wrote, that the majority opinions of Justice Khanna’s brethren be buried “ten fathom deep, with no chance of resurrection.”

To be sure, the right to privacy is not absolute. There exist circumstances in which the right can be legitimately curtailed. However, any such restriction, as the Court held in Puttaswamy , must be tested against the requirements of legality, necessity and the doctrine of proportionality. This will require government to show us, first, that the restriction is sanctioned by legislation; second, that the restriction made is in pursuance of a legitimate state aim; third, that there exists a rational relationship between the purpose and the restriction made; and fourth, that the State has chosen the “least restrictive” measure available to achieve its objective.

In this case, not only are the government’s technological solutions unfounded in legislation, there is also little to suggest that they represent the least restrictive measures available. A pandemic cannot be a pretext to abnegate the Constitution. Inter arma silent leges , said Cicero: “For among [times of] arms, the laws fall mute”. But our fight against COVID-19 is no war. Even if it were, our Constitution is intended for all times — for times of peace and for times of crises.

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