When delivering the 12th Justice K.T. Desai Memorial Lecture on dissenting judgments in Mumbai last year, Justice Rohinton F. Nariman described the great dissenters on the Supreme Court of the 1950s and 1960s as persons who had chiselled and added meaning to the Constitution’s fundamental rights.
They did this, he said, by, more than anything else, appealing to what the former Chief Justice of the U.S. Supreme Court, Charles Evans Hughes, had called the “brooding spirit of the law and the intelligence of a future day.”
Now, on August 24, Justice Nariman and eight of his colleagues, who heard arguments in Justice K.S. Puttaswamy (Retd) v. Union of India, have brought to life the brooding spirit of three such dissents. In doing so, they have not only consigned some of the court’s most regressive judgments to the dust heap of history, but have also delivered a rousing affirmation of the critical place that the right to privacy enjoys in the penumbra of liberties that the Constitution guarantees.
A slew of consequences
Perhaps it ought to be a matter of shame for us that well into our seventh decade as a constitutional democracy, we needed the Supreme Court to tell us whether we possess a fundamental right to privacy or not.
But this unanimous verdict delivered through six separate opinions nonetheless marks a watershed moment in our constitutional history. Collectively, the judgments could well herald a new dawn.
The verdict’s consequences for civil liberties are potentially enormous. They are likely to have an effect not only on the challenge to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act — that is presently pending but also on a slew of other issues, ranging from matters concerning the collection of private data to invasions that go to the root of our bodily integrity and individual autonomy.
The reference to the nine-judge Bench emanated out of the larger challenge to the validity of the Aadhaar Act. There, during the course of hearings before a three-judge Bench, the Union of India raised a rather alarming plea:
it said, in response to arguments that the legislation infringed the right to privacy, that there simply existed no such fundamental guarantee. The government predicated this argument on the basis of two previous judgments of the court, M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962), rendered respectively by a Bench of eight and six judges, which, it said, had conclusively held that there existed no fundamental right to privacy. Accordingly, it contended that subsequent judgments rendered by Benches of lesser strength which had recognised a fundamental right to privacy were wrongly decided.
Before the nine-judge Bench, in seeking to further its plea, the government made a number of claims, three of which were particularly noteworthy.
First, it argued that the Constitution’s framers never intended to incorporate a right to privacy, and therefore, to read such a right as intrinsic to the right to life and personal liberty under Article 21, or to the rights to various freedoms, such as the freedom of expression, guaranteed under Article 19, would amount to a rewriting of the Constitution.
Second, it claimed that since privacy, as a concept, was vague, amorphous, and incapable of precise definition, it cannot be elevated to the status of a fundamental right.
Third, it contended that privacy was, at best, a purely elitist concern, and that, in a land like India, rife with poverty, it can never be considered as a value worth universally cherishing.
Unanimously rejected
Although the court speaks through six separate opinions, marked by occasionally disparate reasoning, each of the state’s arguments stands unanimously rejected.
On the first argument, the court recognises that much of the text of the Constitution, particularly of the rights enlisted in part III, are abstract statements of privileges that, in any event, require interpretation for us to make sense of them. To hold, therefore, that privacy is intrinsic to personal liberty does not tantamount to rewriting the Constitution. On the other hand, it would merely be a natural product of a proper interpretive exercise, where the Constitution is seen as not merely representing a matter of social fact but of being a product of morality, of representing a set of larger ambitions and ideals.
The court recognises that the constitutional guarantees of a right to personal liberty and of a right to freedom of expression, while abstract in their wording, are subsumed by deep moral values central to the very conception of citizenship. What’s more, as Justice Sanjay Kishan Kaul notes in his separate opinion, “the Constitution was not drafted for a specific time period or for a certain generation, it was drafted to stand firm, for eternity.” The notions of “goodness, fairness, equality and dignity can never be satisfactorily defined,” he adds. They were left “abstract for the reason that these rights, by their very nature, are not static.” To disregard privacy as a fundamental right would, therefore, fail to make the best sense of the Constitution as a legitimate basis for government.
The argument that privacy is a purely elitist concern is also found to be unsustainable. Here, Justice Chandrachud, for example, leans on Amartya Sen’s work to show us that liberty and freedom are values that are not only inherent in our constitutional order, but that they also serve a larger instrumental purpose, in creating conditions that best further the cause of equality and social justice.
The idea that privacy is amorphous and vague is similarly made short shrift of. Privacy, as a concept, the court finds, involves not merely a simple right to be left alone, but extends to protecting a number of different values integral to a person’s most intimate choices; it constitutes a bundle of liberties, including, as Justice Nariman points ought, the right to abort a foetus, the rights of same-sex couples, the rights as to procreation, to contraception, and so forth.
This holding, in and of itself, should be sufficient to overrule the court’s judgment in Suresh Kumar Koushal v. Naz Foundation, where it upheld the abominable Section 377 of the Indian Penal Code, which, among other things, criminalises homosexual activity.
Ultimately, however, the judgments in Puttaswamy will perhaps be remembered best for their vindication of three glorious dissenting opinions of the past. First, Justice Fazl Ali’s opinion in AK Gopalan v. State of Madras (1950), where he ruled that fundamental rights cannot be slotted into watertight silos that are mutually exclusive, but rather that they have to be read as a collective whole, as rights that give and take meaning from each other. The rights to equality, to freedom of speech and expression, and to life and personal liberty, he therefore held, together stand as a bulwark against the tyrannical powers of the state. This foresight in Justice Fazl Ali’s finding, Justice Nariman writes, “simply takes the breath away.”
Second, the court affirms Justice Subba Rao’s voice of dissent in Kharak Singh, where he held that “nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.”
Burying ‘ADM Jabalpur’
Finally, though, comes the clincher: a specific, explicit avowal of Justice Khanna’s daring minority opinion in ADM Jabalpur v. Shivkant Shukla. Here, he ruled that the right not to be deprived of our life and personal liberty without the authority of law was not a creature of the Constitution. Such a right inheres in us as human beings.
Now, the court in Puttaswamy has held that privacy is one such liberty, which is fundamental to our very existence. The court recognises that each of us has, at the least, a kernel of personality, of identity, that we have a right to preserve.
How the court applies this verdict in the future, to different cases, not least the Aadhaar challenge, would no doubt present a significant test. But, for now, it’s time to celebrate, and to commend the Supreme Court for its truly momentous ruling.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.