Skip to main content

Kazi Karimuddin wished individuals secured from 'unreasonable' search and seizure

By Moin Qazi*

Human civilisation has always believed that there is something primal about the need for privacy, for secrecy, for personal space. This has, in the world of some judicial authorities, taken to mean “the right to be let alone”-- that is, the right to privacy. They believe “privacy is the beginning of all freedom”.
Every one of us seems to ensure that his or her own privacy is treated as sacred space. However, jurisprudence has still not been able to harness this legal concept into a clear beacon for law enforcement authorities.
A major reason is that the whole idea of privacy is highly nebulous and it seems very difficult to pin it down to a definable idea. But assuming our right to privacy is guaranteed, how do we know what are the boundaries which make private space exclusive and confer an absolute and unfettered right?
Kazi Syed Karimuddin was one member of the Constituent Assembly, who doggedly pursued the idea of privacy as integral to fundamental rights. Born in 1899 in Yavatmal district in Maharashtra, he had studied at the Aligarh Muslim University and became a noted criminal lawyer. He was a prominent member of the Congress and was also a member of the Rajya Sabha from 1954 to 1958.
Endowed with rare forensic skills, Kazi Karimuddin’s vast experience and insights gave him an uncanny knack for unravelling the anatomy and pathology of crimes. He was always apprehensive of the pervasive scope of the intrusive lens of the state as well as private agents. He considered privacy a vital constituent of a healthy constitutional polity since India’s large population of minorities had become vulnerable due to the emerging communal situation.
Kazi Karimuddin moved an amendment to protect individuals from unreasonable search-and-seizure, on the lines of the American, Irish, and German Constitutions. This was the first time that the right to privacy was so strongly articulated and espoused in the Constituent Assembly. Though, it couldn’t find an explicit place in the Constitution at the time.

Pre-independence history of right to privacy

In the late nineteenth and twentieth century, the idea of privacy was inextricably linked with that of the inviolability of the house or property.
The Constitution of India Bill 1895, one of the embryonic documents that projected India’s constitutional vision, stated: ‘Every citizen has in his house an inviolable asylum.’ The Commonwealth of India Bill, 1925, protected unwarranted interference to one’s dwelling without due process.
The Nehru Report (Motilal Nehru, 1928), an outcome of the All Parties Conference, guaranteed a similar right.
A few years before the beginning of formal constitution-making, a draft of the Indian Constitution (MN Roy, 1944), as endorsed by the Radical Democratic Party, for the first time extended the right to privacy to include private correspondence.
Four years later another Draft Constitution (Socialist Party, 1948) granted protection against unlawful entry into one’s dwelling except under the due process of law.
The Constituent Assembly constituted Principal Committees, with internal sub-committees, for preparing reports that would enable the Drafting Committee to develop a draft Constitution. Prominent among these was the Advisory Committee on Fundamental Rights. Members of this committee -- including Dr BR Ambedkar, KM Munshi and Harman Singh -- staunchly advocated for the inclusion of a right to privacy as a fundamental right.
Harman Singh was inspired by the Czech Constitution and he stated in his report that ‘Every dwelling shall be inviolable’. KM Munshi sought to make the right to the inviolability of one’s home and the right to the secrecy of one’s correspondence a fundamental right. In his States and Minorities Report, Dr Ambedkar advocated for 'the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures'.
There was strong opposition to these proposals.
BN Rau and Alladi Krishnaswamy Ayyar disagreed with the inclusion of the right to privacy within fundamental rights. Rau was primarily concerned with the interference of the right to privacy with investigative powers of the police authorities. Whereas Ayyar believed that granting the right to privacy and secrecy in correspondence would be disastrous, as it would elevate every private and civil communication to that of state papers.
This would adversely affect civil litigation where documents form an essential part of the evidence. Both Rau and Ayyar were successful in persuading the Advisory Committee to leave out provisions relating to the right to privacy. The final report of the Committee did not bear any mention of the Right to Privacy.
There were two separate attempts later. On April 30, 1947, Somnath Lahiri proposed to make the right to privacy of correspondence a fundamental right. However, his proposal did not receive traction. Somnath Lahiri proposed an amendment, adding a new clause under ‘Rights to Freedom’, which read, ‘The privacy of correspondence shall be inviolable and may be infringed only in cases provided by law.’ However, this was never voted upon or even debated.
A year later Kazi Syed Karimuddin moved an amendment to include the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures in Article 20 (Draft Article 14) of the Constitution. 
Members of the Advisory Committee on Fundamental Rights Dr BR Ambedkar, KM Munshi and Harman Singh staunchly advocated for the right to privacy
He cited examples of the American and Irish Constitution and reminded the Assembly of Dr Ambedkar's similar proposal to the Committee of Fundamental Rights. The proposed text read as follows: 
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized".
Dr Ambedkar noted that it was a useful provision, though it was part of the Criminal Procedure Code. He observed that legislatures of the future may abrogate the provision. Hence, on account of their criticality to personal liberty, it was desirable to place them beyond the reach of the legislature.
The Vice-President of the Constituent Assembly attempted twice to put the Karimuddin text to vote. Although he declared the amendment as having been accepted both times, TT Krishnamachari objected, saying both times that the majority vote was of those who were not in favour of the amendment.
The records of the day's debates suggest that there was unrest and at Jawaharlal Nehru’s behest, voting had to be postponed. Eventually, Karimuddin’s amendment was put to vote on a different day with no debate and was defeated.
The Constituent Assembly seems to have made its decision with very little meaningful debate on the subject
The next attempt at recognising privacy came from Pandit Thakur Das Bhargva. He moved an amendment to add a new article after Article 15, which said: ‘No person shall be subjected to unnecessary restraints or to unreasonable search of person or property.’ He referred to the previous attempt of Kazi Karimudin and Dr Ambedkar to incorporate this principle into the Constitution.
However, he was opposed by HV Kamath. The contention of Kamath was that delineating an extensive procedure under which a person can be deprived of his liberty amounted to unnecessary intrusion into the Constitution as it should be reserved for future Parliaments to determine.

Privacy in Modern World

Digital advancement has brought immense benefits and conveniences. By having access to copious amounts of personal data that can be freely extracted, certain apps make the online world seem customised for us. Those who want to recruit clients for their products can know how old we are or where we live or what our eating habits are or what books we like or which brand of products we use.
There is so much individual data in public space that ill-intentioned entities can mine and harvest it for vicious objectives. It is now abundantly clear that our privacy is in a parlous state and much of our personal stuff has already been exposed to the public eye. We are being constantly warned that we should not manage even our insignificant details clumsily because sharing it cavalierly carries invisible and unfathomable hazards.
The government now has many methods, besides tapping into your phone wire, for finding out what you’re up to. Most of us store more in the cloud than in lockboxes. It does not make sense to constrain the technological capacities of law enforcement just because technology allows it to work more efficiently. But those capacities can also lead to a society whose citizens have nowhere to hide and the very idea of privacy becomes an oxymoron.
We can only re-emphasise, at the cost of an overstatement, that functional anonymity is as valuable in commerce as in speech.
In its judgment in Justice KS Puttaswamy v. Union of India, the Supreme Court ended the constitutional limbo by recognising privacy as the constitutional core of human dignity and the foundation of constitutional morality. It held that privacy is a natural right that inheres in allnatural persons and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.
The judgment came at a time when individuals are being regularly confronted by an invasive state, a domineering society, and intrusive businesses. The court emphasized privacy as a necessary condition for “seclusion” which in turn enables the exercise of freedoms like speech, expression, and association. The Supreme Court overruled verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under the Indian constitution.
The challenges and concerns before the Supreme Court had agitated the clairvoyant minds of some of the founding fathers of the constitutions, even though digitisation was inconceivable in those days. Yet, the vast possibilities of the human mind and creativity were already becoming evident.
But more important is that even after three years of the judgment in ‘KS Puttaswamy’, we hardly see rights-based handling of personal data. The judgment effected little change in the government’s thinking or practice. It has continued to commission and execute mass surveillance programmes.
The Supreme Court has been very candid in its observations on the pervasive scope of the Right to Privacy in the Puttaswamy case. The contention that the right to privacy should be subordinated to the economic needs of the poor was considered by the Supreme Court, and the Court held for the first time that there is a fundamental right to privacy in India.
The response of Justice Chandrachud, who delivered the Plurality Opinion, is epochal: “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.…The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birthmarks of individuals.”
---
*Policy and development expert, grandson of Kazi Syed Karimuddin. Views are personal

Comments

TRENDING

What's behind public sector banks showing huge profits in 2nd quarter of 2022-23?

By Thomas Franco*  The quarter two results of the public sector banks (PSBs) appear to be noteworthy compared to a few years ago. All these banks showed good profits in the financial year 2021-22. Twelve PSBs made a net profit of Rs 25,685 crore in quarter 2 of FY23 and a total of Rs 40,991 crore in the first half of 2023. The combined profit of 12 banks in March 2022 was Rs 66,539 crore which was 110% more than 2021 – Rs. 31,816 crore. The Asset Quality Review of 2015 saw a surge in NPAs of PSBs jumping to Rs 8.96 lakh crore in March 2018 from Rs 2.17 lakh crore in March 2014. This was simply because the norms for NPAs were changed from 180 days to 90 days, and all restructuring of even genuine accounts was done away with. In 2018 NPA of SBI was 5.73% which has come down to 0.8% in Q2 of FY23. The NPA of Canara Bank has come down to 2.19% from 7.48% in Mar 2018. The same trend is seen in all public banks. Now SBI has seen a jump of 74% in its net profit, while Canara Bank’s profit is

World Toilet Day 2022: Will new schemes usher in safe cities for India's sanitation workers?

By Sameer Unhale, Dr Simi Mehta, Dr Arjun Kumar, Kushagra Khatri*  World Toilet Day is held every year on November 19. It has been an annual United Nations observance since 2013, which celebrates toilets and raises awareness of the 3.6 billion people living without access to safely managed sanitation. It is about taking action to tackle the global sanitation crisis and achieve Sustainable Development Goal (SDG) 6: Water and Sanitation for All. The SDG 6.2 is the world’s promise to ensure safe toilets for all by 2030. This year, the theme is "Let’s make the invisible visible." India, in its endeavour to achieve health, hygiene, and cleanliness along with universal sanitation coverage, launched the Swachh Bharat Mission (Urban) (SBM-U) or Clean India Mission in 2014 on the birth anniversary of the Father of the Nation – Mahatma Gandhi (October 2), as a national movement. To ameliorate urban sanitation infrastructure, the Atal Mission for Rejuvenation and Urban Transformation (A

Odisha dolphin tourism victim of climate change, prawn farming, infra projects

By Sudhansu R Das*  Nature has blessed Odisha with a vibrant natural sector economy. The forestry, handicraft, handloom, fishery, agriculture, animal husbandry, tourism, pilgrim tourism and horticulture sectors etc can create huge employment and revenue in the state on a sustainable basis. The state needs to develop a sound economic vision to harness the benefits from the natural sectors. Construction of infrastructure projects with investment though generates revenue and ticks the GDP growth; there is no guarantee that it would create inclusive employment opportunities. Today infrastructure projects are like consumer items which are being marketed by middlemen and global traders across the world. Many countries have been ruined due to their obsession with infrastructure driven growth illusion. Recently, the Sri Lankan economy has collapsed due to this illusion. It has created a heavy loan burden on the country whose interest the country can’t repay in the next 50 years. Many infra

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Business back to normal? IIM-A survey says, sales expectations have sharply improved

By Our Representative  The Indian Institute of Management’s Business Inflation Expectations Survey (BIES), which polls a panel of business leaders to find out their perception of slack in economy, including their inflation expectations, year-ahead cost expectations and the factors influencing price changes, such as profit and sales levels, etc., has said that the cost perceptions data indicates signs of moderation in price pressures. Carried out for September, the survey says, the cost pressure of the reporting firms has shifted from “very significant increase (over 6%) to moderate increase (3.1% to 6%).” It adds, “The percentage of firms perceiving over 10% cost increase y-o-y has declined. Over 21% of the firms in September 2022 round of the survey perceive that costs have increased very significantly (over 10%) – down from 26% recorded in August 2022.” Claiming to be a unique survey, in that it goes straight to businesses -- the price setters -- rather than to consumers or household

Innovative, Hrishikesh Mukherjee's movies often banked on excessive sentimentalism

By Harsh Thakor*  Late Hrishikesh Mukherjee more popularly known as Hrishi Da, whose birth centenary was celebrated recently, ranks amongst India’s most progressive and innovative film makers, exhibiting mastery in craft of making socially relevant themes. Mukherjee knitted plots together with great visualisation and sensitivity, be it in comedy, pathos, anger or romance, weaving every ingredient in proper proportion.  Melodrama was restrained and scripts dissected with surgical skill. Without over romanticisation, Mukherjee would do complete justice to the role of the character. He did not champion art films, but gave commercial films an artistic touch. Rarely have artists transcended the medium of cinema to project the real essence of their cultural values so or film directors who narrate a simple tale of regular families that have characters of unique shades, characters which are bound to touch human emotions universally. His characters frequently underwent life-changing journeys

GoI's productivity linked incentives to corporates 'without independent analysis'

Counterview Desk  Wondering how prudent is the Government of India's (GoI's) Productivity Linked Incentive (PLI) scheme, EAS Sarma, former secretary, GoI, in a representation to Nirmala Sitharaman, Union finance minister, has said it appears to be nothing more than subsidy to the private sector without any responsibility. Giving a specific example against the backdrop of announcement of 50% subsidy covering the project cost of the Vedanta Group's decision to set up a semiconductor fabrication plant in Gujarat, in collaboration with Foxconn, Sarma says, "The total cost of this project is reported to be Rs 1,54,000 crore. 50% of this works out to Rs 77,000 crore." Stating that this creates the impression that the entire subsidy allocation for the semiconductor manufacturing sector would be appropriated by this company, Sarma says, "The Gujarat government did not lag behind in liberally announcing similar incentives for the Vedanta-Foxconn project. It offered 7

Parivarnama: A story of love, challenges, sorrow of family 'devastated' by Partition

By Aditya Mukherjee*  “Parivarnama” by Shehla Hashmi Grewal is a riveting account of a family of Delhi from the late 19th century to the present. Through the story of this family, we are taken on a journey through the atrocities of British rule and the resistance against it by the Indian national movement and the left stream within it, the traumatic events leading to the virulent spread of religious communalism and the partition of the country and the destruction of lives and livelihoods, the challenges and travails of building a new life after the old was destroyed, trying to build a secular society in India after independence, the struggles for social and economic justice in independent India leading to the martyrdom of a very distinguished young member of the family and much more. It is not only a very sensitively written history of a family, it is a social and political history of India through some of its most turbulent periods. “Parivarnama” combines what one gets from meaningfu

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam* RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.