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