The Rahmath Nisha case is a chance for the right to privacy to come into its own in India.
Ever since the Supreme Court unanimously recognised the right to privacy in K. S. Puttaswamy (2017), there have been few opportunities to assess the application of the right. In K. S. Puttaswamy, after all, the Court did not apply the right to any specific facts. It merely examined whether the right was implicitly contained within the fundamental rights chapter of the Constitution.
In the Aadhaar judgment in 2018, where the Supreme Court was required to apply the right, the outcome was disappointing. The majority judgment engaged in a remarkably weak form of review. It framed the question as one involving a conflict between two sets of rights (the right to privacy versus the right to welfare) rather than as one relating to the legitimate exceptions to the right to privacy. As a result, several matters such as the overbroad language in Section 7 of the Act, the mechanisms for the use of biometrics, the distinction between subsidies, on the one hand, and services and benefits, on the other, were insufficiently scrutinised.
The Rahmath Nisha case
Rahmath Nisha dealt with a prisoner’s request to visit his unwell wife. The prisoner had received permission to visit his home but, because of health reasons, his wife had been moved to the hospital and he had been unable to meet her. The police claimed that no permission for visiting the hospital had been given, and so, a petition seeking such permission was filed. The state argued that any person convicted of life imprisonment could only receive furlough or parole, and no provision for such a visit existed.
The Madras High Court’s response to the state’s arguments was straightforward enough. For all their crimes, prisoners have rights. They are entitled to the benefits of Article 21 of the Constitution, which for decades has been read to recognise the importance of humane treatment towards undertrials and convicts.
In allowing the prisoner to visit his wife, who had become immobile and could not herself travel to see him, the High Court observed that the Supreme Court has affirmed the United Nations Standard Minimum Rules for the Treatment of Prisoners that underlines the importance of communication between prisoners and their family and friends, and it further took note of the Tamil Nadu Prison Rules, 1983, that similarly affirms this ideal.
Recognising all facets of the right
The most noteworthy feature of the decision, however, was the High Court’s rejection of argument that the meeting between the prisoner and his wife must take place in the presence of the police.
Relying on the K. S. Puttaswamy decision, the High Court read down Rule 531 of Tamil Nadu Prison Rules, 1983, which requires that any interview with a convicted prisoner occur in the presence of an official.
The High Court declared that Rule 531 would not apply to a meeting between spouses. Their communication would, following the general principle in Section 122 of the Indian Evidence Act, 1872, be regarded as privileged. Further, the High Court not only recognised the private nature of an exchange between a married couple, but also recognised the importance of a private space where such an exchange could occur. The setting for a meeting, the High Court noted, should be private, and it should not therefore simply take place outside the prison gates.
The High Court’s decision is significant in two respects. First, it acknowledges both the spatial and informational aspects of the right to privacy. The dual component of this right is often forgotten. Second, it affirms the vital place of civil liberties pertaining to criminal law. Over time, such liberties have been watered down and even jettisoned, with scandalous exceptions to the presumption of innocence, the rules of evidence, and the rules of punishment now pervading several features of our jurisprudence.
The High Court decision is thus a vital corrective to both attacks on the right to privacy and criminal law guarantees. It should be widely celebrated.
Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His book, India’s Founding Moment: The Constitution of a Most Surprising Democracy, is forthcoming from Harvard University Press. He tweets @MadKhosla. Views are personal.