As a citizen, I’m happy that the Supreme Court provided me the right to privacy that my Constitution Assembly refused to give me in the first place and that my parliament would never have given me.
But this tendency of the Supreme Court to rewrite and insert almost entire sections in the constitution is going beyond the dangerous limit.
SC has no power to amend or insert text in the Constitution. It can only interpret the constitution where there is any ambiguity in the written text. Even for that, it first has to refer to the records of relevant debate in the Constitution assembly (they are documented and archived) to understand the intention of the Constitution makers behind that particular section.
Some SC orders can act as ordinary law (and not constitution) if pronounced under section 142 but even that power is given to be used in extreme situations (SC now a days uses article 142 quite liberally – latest being liquor ban within 500m of highways). It’s strange that something that was discussed in the Constitution assembly and rejected has been added to the Constitution by the SC on the name of interpretation.
In Constitution assembly, KS Karimuddin had moved an amendment to include right to privacy explicitly in the Constitution but it was not accepted by the Constitution assembly. A 8-judge bench (and before that a 6-judge bench) had rightly decided that right to privacy is not a fundamental right encoded in some other fundamental right(s) given in the Constitution.
Article 21: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The SC today declared that this also means right to privacy.
But if we look at the history of SC judgements, we see that the SC can interpret anything as anything. Our Constitution did not have any concept of “basic structure” or “basic features” defined in it. SC invented that term but did not define it so that it can be defined as and when someone claims something to be part of the basic structure (like the latest one in NJAC case).
SC used the concept of basic structure to limit the power of parliament in amending the constitution as given in article 368(1). Those powers were unconstrained and absolute in the original constitution as there was nothing called the “basic structure”. This judgement was passed by a 13 judge bench by a 7-6 majority.
The SC also invented the entire Collegium system by interpreting some simple text from articles 124(1) (regarding Supreme Court) and 217(1) (regarding High Courts). So going by those instances, this interpretation of “life and liberty includes privacy” still looks quite small an act.