Indian Constitution was written up, enforced without explicit recognition of individual’s privacy as fundamental right

scBy Venkatesh Nayak*

According to news reports, the Supreme Court has reserved its opinion on referring to a larger bench the Attorney General of India’s question as to whether it was correct or not for a smaller Bench of the Court to hold that every citizen has the fundamental right to his/her privacy when two earlier Constitution Benches of the Court have held that there is no such fundamental right. The opinion is likely to be delivered on Tuesday. As we wait for that opinion, it is useful to examine how the concept of the right to privacy has evolved in modern India. It is also necessary to examine whether the questions raised by the Attorney General of India (AGI) are germane or not to the debate on Aadhaar or Unique Identification (UID) which is central to this controversy.

Right to privacy in India before Independence

Several researchers, including this author and academic scholars and experts, have noted with exasperation the absence of a term in most of the popular languages in India that adequately captures all the facets of the concept of individual privacy. This is not to argue that there was no popular notion of privacy in ancient or medieval India. The point is being made that the local language variants do not capture facets such as the nearly inviolate privacy of one’s home, correspondence, thoughts, beliefs, faith as we all the necessity of protecting personal information from misuse by public or private agencies or its commercial use without the informed consent of the person.

Constitution of India Bill, 1895: The idea of a right to privacy as a trump against the power and might of the State to interfere with personal freedoms is first expressed in the Constitution of India Bill drawn up in 1895 by authors whose identity is not well established. Bal Gangadhar Tilak, who declared, “Swaraj is my birth right”, and Annie Besant who started the Home Rule League in India, are said to be the inspiring leaders behind this Bill. The text of the Bill recognised that “Every citizen has in his house an inviolable asylum” – a simple articulation of the classic English notion of privacy – for every man his home is his castle and the State could not invade it without lawful and legitimate reason.

The Commonwealth of India Bill, 1925: Under the Chairmanship of Sir Tej Bahadur Sapru another Bill was drawn up for self-governance in India. Mahatham Gandhi, Bipan Chandra Pal and Sarojini Naidu were members of the Committee that put together this Bill. This Bill recognised that “Every person shall have the fundamental right to liberty of person and security of his dwelling and property.” The notion of privacy now extends to personal liberty and security for one’s property apart from one’s home.

The Nehru (Swaraj) Report, 1928: Three years later the Indian National Congress constituted a committee under the Chairmanship of Motilal Nehru to draw up a plan for Swaraj (self-rule) for India. Netaji Subhash Chandra Bose was a member of this Committee. This Committee placed a negative obligation on the State vis-a-vis privacy: “No person shall be deprived of his liberty nor shall his dwelling or property be entered, sequestered or confiscated save in accordance with the law”. The multifarious aspects of the notion of privacy recognised in Anglo-Saxon jurisprudence is quite evident in this formulation.

Constituent Assembly (CA) debates on the right to privacy: The Constituent Assembly set up an Advisory Committee on Fundamental Rights, Minorities etc. chaired by Sardar Vallabhbhai Patel. A sub-Committee on Fundamental Rights was set up under the Chairmanship of Acharya JB Kripalani. Various members of the CA sent their views on what fundamental rights guarantees should be incorporated in the Constitution and. why.

On the right to privacy, KT Shah wanted the following formulation (December 1946): “Every citizen of India has and is hereby guaranteed security of his person, papers, property, house or effects against unreasonable searches or seizure.” 

KM Munshi‘s note called for this formulation in March 1947: “Every citizen… has the right to the inviolability of his home. Every citizen… has the right to the secrecy of his correspondence. Every person has the right to be free from interference in his family relations.” Two rights were recognised for citizens and one for everybody, including non-citizens.

Harnam Singh called for this formulation inspired by the Czech Constitution (March 1947): Every dwelling shall be inviolable”. The right to privacy was expected to be attached to a physical space instead of an individual’s person.

Dr BR Ambedkar gave a more elaborate formulation (March 1947) favouring a collective right over an individual one: “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 of affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Dr Ambedkar wanted to fit in a strong safeguard against violation of the right to privacy, but at the same time allowed for State action where required under strict monitoring by the judiciary.

In March 1947, the Subcommittee on Fundamental Rights approved the following draft formulation for discussion: “The right to inviolability of his home to all persons. The right of secrecy of his correspondence – to all citizens. Later in April, the final formulation was approved 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 of affirmation, and particularly describing the place to be searched and the persons or things to be seized. The right of every citizen to the secrecy of his correspondence.” The compromise formula recognised the language proposed by Dr Ambedkar and K T Shah and KM Munshi.

However, noted jurist Alladi Krishnaswamy Ayyar, former Editor of Hindustan Times Sardar K M Panikkar, both members of the CA, and its eminent constitutional advisor Benegal Narasingh Rau threw a spanner in the works. They argued that guaranteeing the right to privacy would impede law enforcement and the criminal prosecution of conspirators who will most likely be captured in their dwellings. They also pointed out that the Constitution of USA did not explicitly guarantee the right to privacy to its people. So the Advisory Committee on Fundamental Rights dropped the proposal to recognise the right to privacy as a fundamental right.

However, the right to property and protection for the person of the individual were included as separate fundamental rights in Article 19 and 21. Much later the right to privacy was downgraded to a constitutional right and inserted as Article 300A in the Constitution (click HERE for my note on this). So the Constitution was written up and enforced in 1950 without an explicit recognition of the individual’s privacy as a fundamental right.

As for the USA, in several judgements the US Supreme Court has recognised various facets of the right to privacy as emanating in the penumbra of other fundamental rights explicitly guaranteed by the Constitution. We need not go into those jurisprudential developments here.

Did the Supreme Court of India say that there is no right to privacy?

The AGI is reported to have cited two Constitution Bench judgements to argue that the Supreme Court had ruled that privacy was not a fundamental right in the 1950s and the 1960s. So in his opinion smaller Benches of the Court had no business violating this law of precedents. Let us examine these judgements more closely.

The first case reportedly cited by him is MP Sharma & Ors vs Satish Chandra, District Magistrate, Delhi & Ors [AIR 1954 SC300]. In my opinion, this case from 1953 had nothing to do with the determination of the issue, i.e., whether or not the Constitution recognised privacy as a fundamental right. Instead, it was a challenge to the search warrant issued by the District Magistrate in Delhi to the Delhi Special Police Establishment (DSPE, now known as the CBI) to investigate a case relating to embezzlement of funds by a private company and its associated companies. The DSPE searched 34 places related to the company simultaneously and seized a “voluminous mass of documents”. The Petitioners challenged these search warrants through an Article 32 Petition alleging that their fundamental right to property under guaranteed under the now deleted Article 19(1)(f) then and the right to non-self incrimination guaranteed by Article 20(3) of the Constitution.

After examining facts of the case and provisions of the Code of Criminal Procedure (CrPC), the 9-Judge Constitutional Bench, headed by the then Chief Justice MC Mahajan held that the search warrants were legal and necessary. They also held that such lawfully issued search warrants did not violate any fundamental right guaranteed by the Constitution. While saying so, they put in just one line about privacy:

“24. A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches. It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under section 165 of the Criminal Procedure Code). Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer’s authority for search, no circumvention thereby of the fundamental right is to be assumed” [emphasis supplied].

What the Apex Court was saying was only a statement of a factual position that the right to privacy was not listed in the fundamental rights chapter in Part III of the Constitution. The word ‘privacy’ does not occur anywhere else in the entire judgement – either in the pleadings of the Petitioners or the opinion of the Court. The entire challenge was based on the twin premises that the right not to enter the Petitioner’s property was guaranteed by the Article 19(1)(f) of the Constitution and that seizure of documents during searches were akin to compelling the Petitioners to testify against themselves. The Court rejected this contention by holding that a search per se conducted under lawful authority would not amount to a restriction on the right to hold and enjoy property. This finding is arrived at in two paragraphs while the rest of the Court’s opinion is focused on the violation of Article 20(3) in the light of the CrPC which authorises the conduct of searches by the police.

To hold that this amounts to an authoritative denial that there is a fundamental right to privacy guaranteed by the Constitution would be stretching the Court’s words beyond what they intended to imply. The Court was only stating a factual point – the right to privacy is not listed in the fundamental rights chapter and did not propose to import it into another extant fundamental right. In my opinion, it would be not only crafty but also dangerous to interpret this one-liner to mean that a precedent had been set by the Court on this issue saying that the Court had rejected the idea of the fundamental right to privacy. It simply did not want to interpret the existing fundamental rights to discover the right to privacy.

The next case reportedly cited by the AGI is the Court’s view in Kharak Singh vs State of UP and Ors [AIR 1963 SC 1295]. In this case the Petitioner who was chargesheeted for the offence of dacoity but was later let off for want of evidence, challenged the Uttar Pradesh Police Regulations under which the UP Police frequently visited his house at unearthly hours (domiciliary visits) and compelled him to go to the police station. Further, whenever he was to go to other villages or towns he was required to give notice to the police who would then notify the local police of that place about his sojourn. The Petitioner claimed that such a Regulation permitting surveillance of a person like him who was not convicted of any crime violated his right to freely move about guaranteed under Article 19(1)(d) of the Constitution and the due process guarantee of the right to liberty under Article 21.

Writing the majority opinion for the Constitution Bench headed by the then Chief Justice BP Sinha, Justice R Rajagopal Ayyangar held that there was no violation of the Petitioner’s right under Article 19(1)(d) because that article refers to “something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.” However the majority held that the impugned UP Police Regulation  No. 236(b) violated the right to liberty guaranteed under Article 21 as it was not based on any law. In support of this finding the Court opined:

“We have already extracted a passage from the judgment of Field, J in Munn v. Illinois (1), where the learned judge pointed out that “life” in the 5th and 14th Amendments of the US Constitution corresponding to Art. 21 mean not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word ‘life’ in Art 21 bears the same signification. Is then the word ‘personal liberty’ to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal?

“It might not be inappropriate to refer here to the words of the preamble the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories..Murphy, J considered that such invasion was against “the very essence of a scheme of ordered liberty”. It is true that in the decision of the US Supreme Court, from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads:

“‘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’.”

However, the Court did not stop there. It further opined:

Nevertheless, these extracts would show that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it ultimate essential of ordered liberty, if not of the very concept of civilization. An English Common Law maxim asserts that ‘every man’s house is his castle’ and in Semayne’s case (1), where this was applied, it was stated that ,the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose.

“We are not unmindful of the fact that Semayne’s case was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle- which transcends mere protection of property rights and expounds a concept of ‘personal liberty’ which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value” [emphasis supplied].

The majority view was also based on another premise that Article 19(1) of the Constitution guarantees several freedoms such as those of speech and expression, freedoms of movement, residence and assembly, freedom to pursue a trade or profession of one’s choice etc. are specific attributes of the individual freedoms and the right to liberty guaranteed by the Constitution under Article 21 is but a residue of what is not covered by Article 19(1).

Justice Subba Rao (as he then was) writing a separate concurring judgement on the main issue, namely the unreasonable domiciliary visits but opining in favour of striking down all the impugned UP Police Regulations reasoned as follows:

In AK Gopalan’s case it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercionThe expression is wide enough to take in a night to be free from restrictions placed on his movements. The expression ‘coercion’ in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more. effective than physical ones. The scientific methods used to condition a man’s mind are in a real sense physical restraints, for they engender physical fear channelling one’s actions through anticipated and expected groves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints.

“Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where lie lives with his family, is his ‘castle’: it is his rampart against encroachment on his personal liberty.

The pregnant words of that famous Judge, Frankfurter J., in Wolf v Colorado, pointing out the importance of the security of one’s privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art. 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under, Regulation 236 infringe the fundamental right of the petitioner under Art. 21 of the Constitution” [emphasis supplied].

Once again in my humble opinion, this Constitution Bench also did not hold that people do not have the right to privacy. Instead it only noted the absence of the right in the list of fundamental rights included in Part III of the Constitution. The Constitution Bench in Kharak Singh veered unmistakably towards the protection of personal liberties of an individual against uncalled for intrusions by the State. To hold that in this case the Apex Court had ruled against the fundamental right to privacy may amount to a complete misunderstanding of the thinking of the Court as well as attributing to it an opinion that it never expressed in the first place. The deep concern over the need for protection of an individual’s freedoms against the unbridled exercise of State power by its agents and the relief provided by striking down the offending regulation as ultra vires of the Constitution clarifies the Court’s views on the issue of an individual’s privacy which are understood as personal liberties within the meaning of Article 21 of the Constitution. They only stopped short of declaring it as an implied fundamental right as happened 13 years later.

In Govind vs State of Madhya Pradesh & Anr [AIR 1975 SC 1378] a 3-judge Bench comprised of Justice K K Mathew, Justice PK Goswami and Justice VR Krishna Iyer, the issue was again a challenge to the surveillance tactics (domiciliary visits) of the Police, now in Madhya Pradesh against a person who had been acquitted of criminal charges in 2 out of 3 cases. Delivering the opinion of the Bench and after examining the majority and minority view in Kharak Singh Justice Mathew opined as follows:

“23. Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit Constitutional guarantees. “In the application of the Constitution our contemplation cannot only be of what has been but what may be.” Time works changes and brings into existence new conditions. Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

“24. Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

“25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those tilings stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Convin express this idea forcefully. In this sense, manyof the fundamental rights of citizens can be described as contributing to the right to privacy

“28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute” [emphasis supplied].

What is visible in these judgements cited above is the evolution of the jurisprudence around the right to privacy. From merely stating that Part III makes no mention of this right the Supreme Court over more than two decades cautiously deduced the existence of that right from the operation of other fundamental rights. No Bench of the Supreme Court has placed a bar on the interpretation of the listed fundamental rights to find other rights without which an individual would not be able to lead a life of dignity befitting a human being. It is pertinent to recall Justice Mathew’s opinion from two years ago in the celebrated case of Kesavananda Bharati Sripadagalvaru & Anr. vs State fo Kerala & Ors [AIR 1973 SC 1461]:

The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience” [emphasis supplied]

It is this approach that the Apex Court adopted in 1975. Three months earlier another 3-Judge Bench of the Apex Court of which Justice Mathew was a part discovered the right to information within the scope of the right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution [State of U. P. vs Raj Narain (AIR 1975 SC 865)]. Had these jurisprudential developments caught the attention of the Hon’ble AGI, he might have arrived at a different view on the right to privacy. Several later judgements of the Apex Court recognise the fundamental right to privacy. An MS PPT on this subject that I had presented at the National RTI Convention organised by the Central Information Commission in 2012 is attached for the reference of readers.

In Maneka Gandhi vs Union of India & Anr [AIR 1978 SC 597] famously known as the “Passport case” 7-Judge Bench of the Apex Court overruled the majority view in Kharak Singh regarding the interrelationship between Articles 19 and 21 and held that the minority view was correct. Justice Subba Rao had disagreed with the majority view that Article 21 only carves out residual freedoms from Article 19(1). He had held that both are independent fundamental rights and are overlapping. Justice P N Bhagwati (as he then was) held:

“It was in Kharak Singh that the question as to the proper scope and meaning of the expression ‘personal liberty’ came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view “that ‘personal liberty’ is used in the article as a compendious term, to include within itself all the varieties of rights which go’ to make up the ‘personal liberties’ of man other than those- dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, ‘personal liberty’ in Article 21 takes in and comprises the residue”.

The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: “No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental, right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 39(1) are concerned.”

There can be no doubt that in view of the decision of this Court in RC Cooper v Union of India [1973] 3 SCR 530 the minority view must be regarded as correct and the majority view must be held to have been overruled.

Rustom Cawasji Cooper (RC Cooper) – also known as the “Bank Nationalisation” case – was decided by an 11-Judge Bench of the Apex Court. Maneka Gandhi makes it clear that the main premise of the majority view of the Apex Court in Kharak Singhwas not tenable. When a primary premise of the majority view in one case has been set aside by another Constitution bench using the rationale explained by an 11-member Constitution Bench, how does the Kharak Singh view on the status of right to privacy as understood by the AGI (that is not a fundamental right) hold is a question that only confounds laypersons like me.

Does the law in India recognise privacy as a human right?

There is another route that may be taken to get more clarity on this issue. India signed the Universal Declaration of Human Rights (UDHR) in 1948 and acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1979. Article 12 of the UDHR and Article 17 of the ICCPR recognise the basic human right to privacy. While ratifying the ICCPR, India did not enter any reservation or declaration about the human right to privacy. So it is duty bound to ensure that it takes all kinds of actions – legislative and executive to ensure that people in its jurisdiction enjoy the human right to privacy. The Protection of Human Rights Act enacted in 1993 recognises all rights “relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants such as the ICCPR and enforceable by courts in India as human rights. Consequently, the right to privacy which is recognised by the ICCPR becomes an enforceable human right in Indian Courts.

In the matter of Ram Deo Chauhan @ Rajnath Chauhan vs Bani Kant Das & Ors [AIR 2011 SC 615] The Supreme Court opined as follows:

“53. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. Constitution and Legislations of civilized country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to rule of Law put into force mechanisms for their enforcement and protection. Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as UDHR) adopted by the General Assembly of the United Nations on 10th December 1948 recognizes and requires the observance of certain universal rights, articulated therein, to be human rights, and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term ‘human rights’ itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein.

“54. Possibly considering the wide sweep of such basic rights, the definition of ‘human rights’ in the 1993 Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

“55. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it” [emphasis supplied].

Come Tuesday, the Court will say whether it will accept the AGI’s contention that the issue of whether privacy is a fundamental right must be referred to a larger Bench. Until then one will have to wait with bated breath. It is highly desirable to have some clarity once and for all on the issue. But will this require an 11-Judge Bench or a 13-Judge Bench to hear the matter? Next week we will get to know.

*Programme Coordinator, Access to Information Programme, Delhi
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