Constitutional Law MCQs for CLAT PG, Page 4

The right to privacy was unanimously recognised as a fundamental right under the Constitution in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017). The nine-judge bench held that privacy is intrinsic to life and liberty under Article 21 and is also protected as part of the freedoms guaranteed by Part III. The Court overruled the earlier decisions in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1963) to the extent they held that privacy is not a fundamental right. The right to privacy encompasses multiple dimensions: privacy of the body (bodily integrity), decisional autonomy (right to make intimate choices free from State interference), informational privacy (control over personal data and information), and privacy of communications. The right to privacy is, however, not absolute. The State can restrict it subject to three conditions: the restriction must be authorised by law; there must be a legitimate State interest proportionate to the restriction; and the means used must be proportionate and necessary to achieve the aim. This three-part test of legality, legitimacy and proportionality governs all State encroachments on the right to privacy. The judgment has become the foundational basis for several subsequent developments - it directly enabled the decriminalisation of consensual same-sex relations in Navtej Singh Johar (2018), the striking down of criminalised adultery in Joseph Shine (2018), and the constitutional debate over data protection legislation in India.

In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), a nine-judge bench of the Supreme Court unanimously held that the right to privacy is a fundamental right guaranteed under the Constitution of India. The judgment arose in the context of a challenge to the Aadhaar scheme and its mandatory linkage to various government services. The Court held that the right to privacy inheres in individuals as human beings - it is an inalienable natural right antecedent to the State and flows from the notion of ordered liberty. The right is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III. The bench overruled the earlier decisions in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1963) to the extent they held or suggested that the Constitution does not protect privacy as a fundamental right. The Court recognised that the right to privacy encompasses several aspects: informational privacy (control over personal data), decisional autonomy (freedom to make intimate choices), and bodily integrity. The right to privacy is not absolute and may be restricted by the State subject to three conditions: the restriction must be authorised by law; there must be a legitimate State aim; and the means employed must be proportionate and necessary to achieve the aim. The proportionality doctrine, borrowed from comparative constitutional law, was adopted as the standard for evaluating State intrusions into the right to privacy.

The Indian Constitution is a secular document. Although the term 'secular' was formally inserted into the Preamble by the 42nd Constitutional Amendment in 1976, the Constitution as originally enacted already embodied the essential features of a secular State. Indian secularism is often described as 'positive secularism' - distinct from the Western model of strict separation between religion and State. In the Indian model, the State does not merely tolerate all religions while remaining indifferent to them; rather, it actively engages with religious matters to ensure equal treatment of all religions and to eliminate social evils with a religious basis, such as untouchability. Articles 25 to 28 of the Constitution provide the framework for religious freedom. Article 25 gives every person the right to freely profess, practise and propagate religion, subject to public order, morality and health, and to other provisions of Part III. Article 26 guarantees religious denominations the right to establish and maintain institutions for religious and charitable purposes, manage their own affairs in matters of religion, and own and administer property. Article 27 prohibits the levying of taxes specifically for the promotion or maintenance of any particular religion. Article 28 prohibits religious instruction in wholly State-funded educational institutions. In S.R. Bommai v. Union of India (1994), the Supreme Court declared secularism to be a basic feature of the Constitution. The Court held that any State government which pursues an anti-secular agenda or fosters religious discrimination acts contrary to the constitutional mandate and is liable to be dismissed under Article 356.

The independence of the judiciary is a basic feature of the Indian Constitution. The Constitution provides structural safeguards for judicial independence including security of tenure (judges of the Supreme Court and High Courts can be removed only through impeachment by Parliament), fixed service conditions that cannot be varied to their disadvantage after appointment, and salaries charged to the Consolidated Fund not subject to Parliamentary vote. The question of who appoints judges - and whether judicial primacy or executive primacy operates in appointments - has been the subject of landmark constitutional adjudication. In S.P. Gupta v. Union of India (First Judges Case, 1981), the Supreme Court held that 'consultation' with the Chief Justice of India did not mean his concurrence was necessary, and the executive had primacy. This was overruled in Supreme Court Advocates-on-Record Association v. Union of India (Second Judges Case, 1993), where a nine-judge bench held that in appointments to the Supreme Court and transfers of High Court judges, the opinion of the Chief Justice of India - acting through a collegium of the two senior-most judges - would have primacy and the President must give effect to it. The collegium system was further elaborated in the Third Judges Case (1998) to include the CJI and four senior-most judges of the Supreme Court. Parliament responded by enacting the Constitution (99th Amendment) Act 2014, which inserted Articles 124A, 124B and 124C establishing a National Judicial Appointments Commission (NJAC) with balanced membership from judiciary, executive and civil society. In the Fourth Judges Case - Supreme Court Advocates-on-Record Association v. Union of India (2015) - a five-judge bench by a 4:1 majority struck down the 99th Amendment as violating the basic structure of the Constitution by undermining judicial independence. The lone dissenting judge, Justice Chelameswar, held that the NJAC was a legitimate constitutional reform that actually strengthened judicial accountability without destroying independence.

Article 32 of the Constitution confers on every person the right to move the Supreme Court for the enforcement of the fundamental rights guaranteed in Part III. Dr. B.R. Ambedkar described Article 32 as the most important article in the Constitution - without it, the Constitution would be a nullity. It is itself a fundamental right. The Supreme Court under Article 32 may issue directions, orders, or writs including writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The five writs serve distinct purposes: habeas corpus secures personal liberty by requiring that a detained person be brought before the court; mandamus compels performance of a public duty; prohibition prevents an inferior court from exceeding its jurisdiction; certiorari quashes an order already made in excess of jurisdiction; and quo warranto challenges the authority by which a person holds public office. In ADM Jabalpur v. Shivakant Shukla (1976), decided during the Emergency, the Supreme Court by a majority of 4:1 held that the right of a detainee to move the Court for habeas corpus was suspended during Emergency and that no person had any locus standi to challenge preventive detention. Only Justice H.R. Khanna dissented, holding that the right to life and personal liberty could not be suspended by executive order even during Emergency. In Justice K.S. Puttaswamy v. Union of India (2017), a nine-judge bench, while unanimously recognising the right to privacy as a fundamental right, expressly overruled ADM Jabalpur, endorsing Justice Khanna's dissent. The Court reaffirmed that the Constitution is not the sole repository of the right to life and liberty, and that judicial remedies under Article 32 are a precious and undeniable feature of the rule of law.