This article has been written by Siddharth Shukla, a student of Jindal Global Law School.

Introduction:

Right to privacy is one of the most important topics in the contemporary debates. Having gained such an attention in the current scholarship, it has become eminent for carefully analysing the revolutionary Judgement on right to privacy, K.S. Puttaswamy v. U.O.I.,[1](referred as Puttaswamy hereafter) this case has cleared the stance of Indian Constitution on right to privacy. The decision was delivered by nine judge bench of Supreme court, declaring Right to Privacy as a Fundamental right under Article 21 along with the Part III of Indian constitution. 

Definition

Comparative Interpretation 

Comparative constitutional law allows one state to ameliorate its legal system by understanding the rules and framework of another country.[2] This approach is used for judicial interpretation as well as during the constitutional making.[3] One of most the essential elements of the comparative approach is its manner in which the courts depicts the similarities in the provisions of various constitutions and statutes around the world about various issues in order.[4] As famously quoted by R. H. Graveson “People are bound together by common problems and by the desire to share in the achievements of other nations”[5], it is not wrong to assume that all the countries faces similar problems. In the era of Globalization and modernization, this is one of the most effective as well as efficient interpretation as if countries relies on certain issues that have been previously dealt by other countries it will not only save time of the court but also the costs involved in the decision making. Constitutional design was prime focus of the newly independent culturally diverse nations.[6] Similarly, the role of courts has increased in country which is often known as judicialization. Such “judicialization” and “constitutionalising” were key factors in spread of comparative analysis.[7] With such rising importance of the judiciary in social and political part of the country, many countries were confronted with similar problems. So, these courts started referring foreign law for solutions as some of the newly democratised countries found it easier to incorporate the ideas of other countries with developed jurisprudence.[8] Puttaswamy is an excellent example of judicialization as it has created a new right from interpreting the Indian constitution. 

Analysis

In South Africa, the constitution explicitly provides for courts that it “may consider foreign law” while interpreting its Bill of Rights and legitimises comparative constitutional interpretation.[9] However, Indian constitution does not mention anything about the use of foreign case laws. For interpretation of some provisions of Indian Constitution, Indian judiciary has relied on constitutional precedents from U.S.A., Canada, Britain and Australia.[10] Foreign precedents have persuasive value, not binding on the Indian courts[11]. Indian courts have relied on foreign precedents for the provisions of Indian Constitution that were based on foreign constitutions[12]. Now, Article 21 of the Indian constitution 1950[13], is based on the Magna Carta of 1215, the 5^th Amendment of the American Constitution Article 40(4) of the constitution of Eire, 1937 and Article XXXI of the Constitution of Japan, 1946[14]. Therefore, Puttaswamy is justified in relying on the American case laws as the provisions of the Indian Constitution were based on the similar ideas and it would be helpful in establishing the true nature as well as building the scope of the right to privacy.

In the judgement of Puttaswamy J. Chandrachud has referred to the development of right to privacy as fundamental right in countries like USA, UK, Canada and South Africa. This section shall be focussing on those parts which deals with the development of right to privacy in USA.
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Like India, USA did not contain the aspect of right to privacy explicitly in the constitution, it has been incorporated through judicial reasoning in the various amendments in the American Constitution. The jurisprudence developed from the primary focus on individual’s private property to several aspects of personal life such as conscience, education, abortion, communication and conception. Puttaswamy traces the evolution of right from Boyd v. United States[15], the case where the question of privacy first arose. Continuing the legacy, judiciary finally laid down “reasonable expectation of privacy test” in the famous judgement of Katz v United States[16], the fourth amendment entails the right to privacy if a person expects privacy(subjective) along with such expectation being “reasonable” for the society. Further, in the timeline judiciary in Smith v. Maryland[17], realized that the limitations of Katz rules when such situations arise which cannot be incorporated under fourth amendment. In a nutshell it can be said that the concept of right to privacy was intrinsic to the constitutional enactments within the amendments and the judiciary through these enactments the meaning of right to privacy was derived. Puttaswamy too has shown that right to privacy was embedded in article 21 of the Indian constitution. 

Use of comparative politics is justified in the privacy judgement as it is encouraging and instigating the process of self-reflection[18]. It has two benefits. First, a higher requirement is set for judiciary which disagrees with the internationally accepted position. For example, if the court had ruled against the “right for privacy” then it would have to prove its position to a substantial extent for it’s different opinion from the other comparable legal systems. Secondly, It is an efficient and cheapest method to formulate law[19], especially in a country where the process of law making through legislature is too slow in updating the outdated laws with the current internationally accepted position in some key areas. 

Naz foundation v. Govt. of NCT of Delhi[20], was a decision that had used comparative analysis. In this judgement the court was confronted with the question of constitutionality of section 377 of Indian Penal Code[21], which prohibited unnatural sex. This case was also cited in Puttaswamy, Though Naz was later overruled in Supreme court, it’s comparative analysis is often acclaimed by scholars of Comparative constitutional law

The decision appears to be immune from the idea of cherry-picking, as it has relied on a vast variety of countries like U.S.A., U.K., Canada, South Africa. Chances of cherry picking is reduced as the development of the right to privacy has been discussed in detail from such countries. 

But if we compare this case with the Naz foundation v. Govt. of NCT of Delhi[22], we can infer both the cases have not restricted themselves to only to western dominant judicial systems only. Naz had referred to cases from non-English speaking countries like Nepal and Fiji. In addition to that all the decisions from different nations were weighed equally. On one hand Puttaswamy recognised the trends on privacy in countries like Canada, South Africa, Naz acknowledged the current trend of decriminalization of homosexuality in third world countries like Nepal, Hong Kong, Fiji. In the aspect of referring to non-western jurisdictions, Naz has much wider scope than Puttaswamy case. Naz reference to such countries have broken the myth that comparative analysis is not just limited to one-way transfers only[23].

Definition

Progressive Interpretation

Courts must not accept an interpretation that hurdles the progress of social unification[24]. Such an interpretation must be followed which is in line with the ideas of the Preamble along with part III & IV of the constitution such that it provides for political, social justice and socio-economic empowerment to the weaker sections and preventing any injustice to them[25]. It is correct to assume that the provisions of the constitution has to applied to changing circumstances and context as such they may happen in the course of the advancement of the community[26]. As J. Krishna Iyer famously describes constitution as a mechanism under which the laws have to be created and it is not an Act, “which describes what law is to be”[27]. But while using the method of interpretation the court should not consider the construction which is merely based on the changing popular opinion[28].

Analysis:

The Judgement has made it clear that the right to privacy is “not an elitist construct”. Political and Civil rights are not subservient to the socio-economic rights. This right should be available to the public irrespective of their social class. Autonomy and dignity has been identified as essential to an individual’s privacy and wellbeing. The idea of “dignity” and “liberty” has been construed through the preamble of the constitution aided with Part III. The right to privacy has been distinguished from a privilege. As I have already defined the aspects of progressive interpretation, this interpretation falls well within the ambit of the interpretation. Interests of the weaker section has been specifically catered. The court appears to acclimatise the constitution with the current progress of the society. With the Puttaswamy judgement many pending amendments related to personal autonomy can now be proposed to the legislatures. One such amendment is the amendment related to the Medical Termination of Pregnancy Act 1971[29].(referred to as Act hereafter) Incorporation of Privacy as a fundamental right can have important impact over the issues related to bodily autonomy like abortion. J. Chelameshwar has mentioned in the judgement that the concerns related to privacy arise when the state intervenes into the body of subjects. The question of abortion for women must fall under the gamut of privacy. According to J. Nariman’s opinion the right to abort must be included in the list of “large number of privacy interests”. In India the right for women seeking abortion is conditional on many aspects. A woman must take the opinion of medical practitioners for abortion (for 12 weeks pregnant), The Act does not provide for abortion to a married woman if she is unprepared to have a child. Her personal choice is curtailed even when she is raped by her husband resulting in her pregnancy. There is no legal recourse under these two conditions for a married woman. The Act prohibits abortion for an unmarried woman due to failure of contraception as the Act explicitly mentions failure “of any device or method used by any married woman or her husband.” In addition to that if an unmarried pregnant woman is unable to prove that her pregnancy will be detrimental to her mental or physical health, would have trouble in obtaining a lawful abortion.  This aspect of the act is in contravention with the right to privacy judgment. Incorporation of Privacy as a fundamental right can have important impact over the issues related to bodily autonomy like abortion. J. Chelameshwar has mentioned in the judgement that the concerns related to privacy arise when the state intervenes into the body of subjects. The question of abortion for women must fall under the gamut of privacy. According to J. Nariman’s opinion the right to abort must be included in the list of “large number of privacy interests”. A bill with amendments such as increasing the gestation period for women and allowing an unmarried woman is pending since 2014. But until then the right to privacy doctrine must allow women to have abortion, a private choice. Therefore, with the right to privacy being included as a fundamental right an argument in favour of passing the amendment can be put forth to the legislature[30]. Revolutionary decision in Roe v Wade[31], the right was extended to the ninth and fourteenth amendment even though right to privacy was not being explicitly mentioned in the American Constitution. Similarly, the Indian decision can be a cornerstone for issues like abortion, data protection, removal of section 377 from IPC[32].

As mentioned in the definition, popular opinion should not be blindly incorporated while interpreting the constitution. The court have rejected the imposition of majority belief over the sexual minorities. Sexual orientation is recognised as an essential element of privacy, liberty and dignity. Hence, This is the remarkable aspect about the judgement in its use of the progressive interpretation. Here, the court deterred from interpreting the constitution with the popular mindset as it was in detriment for the sexual minority community. If the court had accepted the popular opinion, it would have been a regressive step for these weaker sections of the society.

Conclusion: The right to privacy judgement is a revolutionary decision in the Indian Judiciary. The case has used comparative and progressive interpretation flawlessly. Though there was scope of some improvement such as the court should have also referred to case laws and development of right to privacy from neighbouring countries like Singapore, Nepal etc.  The use of progressive interpretation was excellent as it did acknowledge the underprivileged sections of the community. 

Endnotes:

[1] AIR 2015 SC 3081

[2] A. Watson, Comparative Law and Legal Change, The Cambridge Law Journal 37(2) (1978), pp. 313, 317.

[3]  Priya Urs, Making Comparative Constitutional Law Work: “Naz Foundation” and the Constitution of India. Accessed 19 April 2018 http://www.jstor.org/stable/pdf/43239676.pdf?refreqid=excelsior:53b15cf262bee636ecf7d74babb02870

[4] Supra Note 3.

[5] R. H. Graveson, Philosophy and Function in Comparative Law, The International and Comparative Law Quarterly 7(4) (1958), pp. 649, 656.

[6] Choudhry, Sujit (2008), Constitutional Design for Divided Societies: Integration or Accommodation? New York:

Oxford University Press.

[7] Tom Ginsburg & Rosalind Dixon, “Comparative Constitutional Law: Introduction” (University of Chicago Public Law & Legal

Theory Working Paper No. 362, 2011).

[8] Ibid

[9] S. Choudhary, “How To Do Comparative Constitutional Law in

India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation”, accessed on 21 April 2018.

[10] Jain, M.P. 2005, Indian Constitutional Law, 5^th edition, Wadhwa: Nagpur

[11] Chaturbhuj v. Moreshwar, AIR 1954 SC 236

[12]  For example: Express Newspapers Pvt. Ltd. & Ors vs Union Of India & Ors 1986 AIR 872, 1985 SCR Supl. (3) 382, referred to significant number of U.S.A. case laws as article 19(1)a was based on the 1^st amendment of the Constituion of U.S.A.

[13] Constitution of India, 1950

[14] Dharmendra Rajmangal, Fundamental Rights of Indian Citizen, Rajmangal Publishers.

[15] 116 US 616 (1886)

[16] 389 US 347 (1967)

[17] 442 US 735 (1979)

[18] S. Choudhry , How To Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation (2010), p. 14, available at http://papers.ssrn.com/sol3/pa- pers.cfm?abstract_id=l 673378.

[19] A. Watson , Comparative Law and Legal Change, The Cambridge Law Journal 37(2)(1978), pp. 313,317

[20]  Naz Foundation v. Govt. of NCT of Delhi 160 DLT 277

[21] Section 377, Indian Penal Code, 1872

[22] Naz Foundation v. Govt. of NCT of Delhi, 160 D.L.T. 277

[23] Cossman , Migrating Marriages and Comparative Constitutionalism, THE MIGRATION OF CONSTITUTIONAL LAW, Sujit Choudhry ed., p. 209, Cambridge University Press, 2006.

[24]  N.S., Bindra, “Interpretation of Statutes”, (10^th edition, M.N. Rao and Amita Dhanda)

[25]  Ashok Kumar Gupta & Another v State of Uttar Pradesh & others, (1997) 5 SCC 201

[26] Home Builing &Loa Assn v. Blaisdell 190 US 398

[27]  Attorney General fo NSW v. Brewery Employees Union of NSW 6 CLR 469

[28]  Rex v. Commonwealth Court of Consiliation and Arbitration and Merchant Service Guild 15 CLR 586.

[29]  Act No. 34 of 1971

[30]  Zeba Siddiqui, “A Matter Of Choice: What the right to privacy judgement means for India’s abortion law” 1 January 2018, http://www.caravanmagazine.in/perspectives/right-to-privacy-judgement-abortion accessed on 20 April 2018.

[31] 410 US 113 (1973)

[32] Zeba Siddiqui, “A Matter Of Choice: What the right to privacy judgement means for India’s abortion law” 1 January 2018 http://www.caravanmagazine.in/perspectives/right-to-privacy-judgement-abortion , accessed 20 April 2018.

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