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 Hon’ble Justice B. S. Chauhan is also a primer on the right to privacy u/a 21 of the Indian Constitution. The judgment has very clearly identified the right to privacy of sleep as a right to not being disturbed while asleep, wherever and whenever; however, it is not the right to fall asleep, wherever and whenever.
This judgment could have had wide ramifications but only if it was enforceable against private persons – I would have loved to see it being enforced against the “Big Bosses”. However, there is still hope.
The main problem arises because of an old judgment passed in Vidya Verma through next friend R. V. S. Mani v.Dr. Shiv Narain Verma,  2 SCR 983, in which, 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” but 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, Hon’ble Justice Krishna Iyer has clearly held the “law” to mean the wider “natural law” (i.e. “dharma”) and not just “positive law”. However, the majority judgment has 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, or, in other words, the two articles were found to be existing as part of the same continuum but not in isolation. But, soon thereafter, vide 44th amendment of the constitution, article 21 was put up 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, or, in other words, the majority judgment in the Maneka Gandhi case was overruled by the parliament; and the only judgment that remains now to ensure procedural fairness u/a 21 is that of Hon’ble Justice Iyer, but Hon’ble 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 Hon’ble Supreme Court, which means Hon’ble Justice Iyer’s judgment has been applied – majority judgment can’t be applied for the reasons stated above.
In the above premises, 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 Hon’ble Justice Iyer’s judgment in Maneka Gandhi’s case as applied by the Hon’ble Supreme Court in many subsequent cases. If not, all the judgments in which procedural fairness u/a 21 has been upheld by the Hon’ble Supreme Court after the 44th amendment, are illegal and void; or, in other words, it 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” and not just “positive law”.
I started my adventure into law with this puzzle 7 years ago, but, at that time, couldn’t convince the Supreme Court. But, it seems, the position has not changed till now, with the latest case being that of Ratan Tata. I hope somebody will change it.
© 2012 Ankur Mutreja
The following two tabs change content below.
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.
Latest posts by Ankur Mutreja (see all)
- NDTV’s CBI Raids Are the Result of Nidhi Razdan & Sambit Patra Spat! - June 27, 2017
- Goods and Services Tax (GST) Is Bad in Reference AADHAAR - June 26, 2017
- Meira Kumar Is just another Hypocrisy! - June 25, 2017