The Supreme Court's judgment on the right to privacy has been fitly hailed as a historic measure. Naturally, popular attention is focused on its direct and evident consequences. But the terms of the verdict, and some specific points made by individual judges, hold out a deeper promise for the freedom and dignity of Indian citizens.
I am not a lawyer or jurist. I earnestly hope that, contrary to the evident tenor of my argument, I am not offending against the law, or the dignity of the law. Rather, I wish to enhance our respect for the law through a prominent instance of how its operation can safeguard our citizenry. I am drawing on my experience as a student of language and texts. All language has an epistemological function - that is to say, it bears implications for our knowledge and understanding of things, beyond the immediate message of the words. The Supreme Court's judgment has exciting intellectual dimensions at this philosophic level, backing up the practical benefits to society.
Our Constitution does not enshrine an explicit right to privacy, but the court found it implicit in other rights that are so enshrined. In other words, the express letter of the Constitution is only the starting point for a deeper exploration of our polity and the envisaged life of the citizens. Many other rights have earlier been deduced from the text of the Constitution in the same way.
This effort to draw out the inherent purport of the law is quite opposite to its overstretched and contentious application in much legal practice, which the common citizen rightly holds in terror. The daily traffic of the courts consists largely of such exercises, or of purely procedural issues - taking the letter of the law or, worse still, the rule-book, as an inert structure that can be rough-handled, like dissecting a dead body.
In contrast, a landmark judgment like the present views the law as what the juridical theorist, Joseph Vining, calls it, a "living text". All texts are living, though legal ones are seldom viewed as such. A living text does not foster perverse or inappropriate extensions to its meaning, any more than a living human body seeks to sprout three hands. But the two hands with which nature has endowed it develop with time and are applied to ever-new tasks. So too a living text makes its inherent content manifest over time, revealing new functions, gifting us a value contained in it from the start but appearing only in stages to particular gazes at particular, appropriate times.
Such evolving interpretation is most often associated with works we call literature. This may be because poems, plays and novels are commonly harmless ineffectual things: they have no impact on our practical lives. (When they threaten to do so, they risk legal or social attack.) It is important to realize that literary works are not marked off from other applications of language by any special feature. They do most openly and intensively what all language does all the time: use words whose meanings have undefined limits, in sentences where those meanings are further complicated through interaction with other words, to express the writer's purpose to an indeterminate degree.
It is often very reasonably argued that we cannot gauge the writer's purpose except through what he or she writes. I will not go into tortuous literary theories about authorial intent and the autonomy of the text. Of all fields, the juridical is perhaps where a stable and impersonal meaning is most imperative: we must interpret a law by its text, not the unexpressed intent (if any) of the persons who drafted it. As said above, most routine legal practice proceeds on this assumption. The outcome may often be questionable, but to depart from it would be disastrous.
But there is a profounder level at which texts yield fresh value. Such value emerges from justifiable extensions of their surface meaning, at all levels from the individual word to the total composition. The Ramayana has been read for insights into the status of good and evil, the politics of caste, tribe and nation, the position of women, and much else, in terms not apparent in the literal narrative but sighted from the perspective of later ages. Macbeth has been viewed in all lights from a total villain to a self-stricken offender against his own better nature. But there are limits to such variance. It is impossible to read Macbeth so as to show the king's murder as a good deed: the text will not allow it. Responsible interpretation is bold and dispassionate, but never intellectually profligate. It can proceed on diverse or even contrary lines, but only as compatible with the intrinsic terms of the text.
Those terms are both verbal and conceptual. "Words enter the mind," says Vining, "but an instant before, something else enters, which one must clothe in words... as one must move quickly to capture a dream." The life of the text lies in that 'something else', the governing idea, the motivating spirit. For our Constitution it lies, in the memorable words of the judge, J. Chelameswar, in our "hard earned political freedom and the declared aspirations of the liberty of 'we the people of India'." The words of the Constitution are not confined to their dictionary meanings; they combine to form a greater, initially invisible and implicit construct. As we uncover and define the elements of that construct, we reinforce the democratic frame of the republic. "Implications," says the learned judge, "are the product of the interpretative process, of [the] silences of a statute," although they must be "logical extensions of stipulations in the express language of the statute". One is exhilarated to find premises normally confined to barren theory put to such practical good in the life of the nation.
The judgment goes further: "provisions purportedly conferring power on the State are in fact limitations on the State power to infringe on the liberty of SUBJECTS." This reflects a basic premise of all verbal practice. Words mean what they mean, but they also imply their opposites. White is not-black; tall is not-short. If the law empowers the State to do certain things, it thereby restricts the State from doing anything more: beyond those set limits, a citizen's life is his or her own. The State cannot tell the citizen, "We can do this: there is no law against it." The citizen can tell the State, "You cannot do this: there is no law that empowers you." If the State creates such a law, it might now be easier to challenge it as subverting the full intent of the Constitution.
I seek advance forgiveness if I have misunderstood the observations of the learned judge. We may yet draw strength from a simple layman's understanding of his words. We may be reassured anew that at its core, our daunting and bewildering legal system works to uphold our dignity and well-being as citizens. We may also be gratified that one pillar of our system, the judicial, can still boast a depth of intellection that puts to shame the mindless antics around the two other pillars, the political and the executive.
The author is Professor Emeritus, Jadavpur University