Baba Ramdev judgment, available here, is basically a judgment on the legality of implementation of ex-parte order dt. 04.06.2011 passed by the ACP, Kamala Market, Central Distt., Delhi, u/s 144 CrPC. However, the judgment by Justice B. S. Chauhan is also a primer on the right to privacy u/a 21 of the Indian Constitution. The judgment has clearly identified the right to privacy of sleep. It is a right of not being disturbed while asleep. However, it is not the right to fall asleep, wherever and whenever.
The Baba Ramdev judgment could have had wide ramifications if the right to privacy of sleep were enforceable against private persons. The main problem in its implementation against private persons arises because of an old judgment passed in Vidya Verma through next friend R. V. S. Mani v.Dr. Shiv Narain Verma, [1955] 2 SCR 983, where, while referring to the A. K. Gopalan judgment, it was held that the rights u/a 21 of the Indian Constitution are not enforceable against private persons. The logic was that since “law” in India means the state made “positive law”, not the law in abstract, the use of word “law” in article 21 can’t make article 21 enforceable against anybody but the state.
However, the conception of “law” has changed over time. In the Maneka Gandhi judgment, Justice Krishna Iyer clearly held the “law” to mean the wider “natural law” (i.e. “dharma”), not just “positive law”. However, the majority opined that only the “procedure” established by “law” needs to be non-arbitrary, deriving the basis from the procedural fairness guaranteed u/a 14 of the Indian Constitution. The procedural fairness of article 14 was found to be applicable in article 21 as well. In other words, the two articles were found to be existing as part of the same continuum, not in isolation.
But, soon thereafter, vide 44th amendment of the constitution, article 21 was put at a higher pedestal. It was provided that the power to suspend the right to move the court for the enforcement of a fundamental right during emergency cannot be exercised in respect of the fundamental right to life and liberty guaranteed u/a 21. This means that the continuum as propounded in the Maneka Gandhi judgment was overruled by implication.
In other words, the majority judgment in the Maneka Gandhi was overruled by the parliament with 2/3rd majority. Thus, the only judgment that remains now to ensure procedural fairness u/a 21 is that of Justice Iyer. Justice Iyer’s judgment not only ensures procedural fairness but also non-arbitrary law, i.e. the “due process of law”. There are many judgments after the 44th amendment wherein the procedural fairness u/a 21 has been upheld by the supreme court, which means Justice Iyer’s judgment has been applied as majority judgment can’t be applied for the reasons stated above.
In the above premise, the right u/a 21 is available against private persons as well because the old notion of “law” being the state made “positive law” has been clearly replaced by Justice Iyer’s judgment in Maneka Gandhi. If not, all the judgments where procedural fairness u/a 21 has been upheld after the 44th amendment are illegal and void. The above can lead to unbearably absurd situation which is against the rules of interpretation, so the only interpretation is that “law” as occurring in article 21 means “natural law”, not just “positive law”.
I would very much like the right to privacy of sleep to be invoked against the “big bosses”. In fact, I started my legal journey in the Supreme Court of India by making a failed attempt of invoking the right to privacy against private persons. But it doesn’t look like the situation has changed much even now, and the right to privacy remains unavailable against private persons irrespective of my back-door solution above.
© 2012 Ankur Mutreja
In Baba Ramdev’s case what was infringed upon is the right of the citizens who were not armed who had been given permission to stay there by the authority concerned viz., the Delhi Police. What the police claims is that the permission was sought for Yoga camp and it was converted for political purpose and therefore they used force on the sleeping citizens. Even assuming that the conditions were violated can the Delhi police use force on sleeping citizens. This has been commented up on by the SC. To bring the case of Ratan Tata is totally out of sync. If the private talks of two individuals relate to violation of a law or something serious concerning public at large, right to privacy cannot be invoked. Hope I am not hurting any one. But definitely every right under Part III of the Constitution is enforceable even against private persons. Otherwise how can we file Habeas Corpus petitions. It is there in the Constitution itself. Coming back to the issue I cannot claim a right of privacy to sleep after illegally tresspassing into somebody else’s property and such a claim would obviously cannot be sustained.
@Mr Ramamoorthi, Thanks for commenting. Please refer below:
In Re, “In Baba Ramdev’s case what was infringed upon is the right of the citizens who were not armed who had been given permission to stay there by the authority concerned viz., the Delhi Police. What the police claims is that the permission was sought for Yoga camp and it was converted for political purpose and therefore they used force on the sleeping citizens”, I have stated in my post the judgment is about the legality of implementation of order passed u/s 144 CrPC, the illegality lied in not giving appropriate notice of the order to the people concerned and, as per Justice Chauhan’s order, also in waking up the sleeping citizen as it was infringement of their right of privacy of sleep. In the majority judgment no negative opinion has been reached wrt to the whole of the police force, opinion has been reached only with respect to those police officers who used force and appropriate directions have been issued for taking action against them.
In Re, “Even assuming that the conditions were violated can the Delhi police use force on sleeping citizens. This has been commented upon by the SC. To bring the case of Ratan Tata is totally out of sync. If the private talks of two individuals relate to violation of a law or something serious concerning public at large, right to privacy cannot be invoked”, the case of Ratan Tata has been mentioned by me to highlight the point that right u/a 21 is not enforceable against private persons. As far as privacy of Ratan Tata is concerned, I am of the view that his privacy has been infringed and the reason has been discussed by me in the link mentioned in my post.
In Re: “Hope I am not hurting any one. But definitely every right under Part III of the Constitution is enforceable even against private persons. Otherwise how can we file Habeas Corpus petitions. It is there in the Constitution itself.”, Habeas Corpus is enforceable against private persons through police/state and not directly i.e. the state will have to be made party and the SC would then issue directions to the state to produce the missing person (pls also check out the Vidya Verma case link in my post). As far as privacy infringement is concerned, since there is no comprehensive law dealing with infringement of privacy in India, in most of the cases, the SC wouldn’t be able to issue directions as the SC has to work in the confines of existing law. Unfortunately, there are no international law or treaties wrt privacy protection which India has signed, so the SC can’t even lay down law on the precedence of Visakha’s Case to fill gap.
In Re, “Coming back to the issue I cannot claim a right of privacy to sleep after illegally tresspassing into somebody else’s property and such a claim would obviously cannot be sustained”, I have very clearly stated that the judgment has very clearly identified the right of privacy of sleep as a right not to be disturbed while asleep wherever and whenever; however, not meaning the right to fall asleep wherever and whenever. This means one can’t trespass one’s property and claim a right to sleep there, but once fallen asleep on the property trespassed, he can’t be disturbed by the state till he wakes up naturally; that’s the law stated in the judgment.
I will recommend you to read all the links mentioned in my post.
@Mr Ramamoorthy, in case you are not a law person, I need to inform you that HC can issue Habeas Corpus against private persons u/a 226. In the SC, I think, it can’t be done because Art 32 is available strictly for enforcement of fundamental right, and art 21 is not available against private persons as per the present law. Also, in my above comment when I mentioned Habeas Corpus, I meant mandamus directions and not writ, so please don’t confuse. I used Habeas Corpus lightly over there, what I meant was directions would be issued to the state.
The following the five info you need to do remember so you’ll be able to manage to produce your certain successful world-wide-web. survey reviews
I conceive this web site has got some really excellent information for everyone :D. “Nothing great was ever achieved without enthusiasm.” by Ralph Waldo Emerson.
I visited a lot of website but I think this one contains something extra in it. “The pen is the tongue of the mind.” by Miguel de Cervantes.
Absolutely composed subject matter, regards for entropy.
I just want to mention I am beginner to blogging and really enjoyed your web blog. More than likely I’m likely to bookmark your blog . You certainly have terrific posts. Thanks a bunch for sharing your web-site.