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Structuralist and Comparative Interpretation of the K.S.Puttaswamy v. Union Of India

Right to Privacy is one of those subjects upon which the Indian legal system has seldom delved. The court in the past has rejected the claims for right to privacy to be accepted as a fundamental right, which was pointed out in two cases: MP Sharma v. Satish Chandra[1], which was a eight judge bench and Kharak Singh v. State of UP[2], being a five judge bench, the Supreme Court in both the cases rejected all claims for privacy to be recognised as an integral aspect of the Part III of the Constitution.

It was in 2017 when the K.S.Puttaswamy v. Union Of India 2017[3] judgement came forth that this position was finally reversed with the Supreme Court through a nine - member constitutional bench adjudicating that the right to privacy is an inalienable right of all citizens within the Part III of the Indian Constitution. It is also essential to note that, Right to Privacy by virtue of being interpreted under Article 21, which comes under Part III of the constitution is a fundamental right.

Although, the right to privacy has been called a fundamental right, the judgment makes it extremely clear that just like most fundamental rights even the right to privacy would be accompanied with reasonable restrictions, which prevents it from becoming an 'absolute right.' This decision of the court, also shows the willingness of the Indian Judiciary to accept cases that relate to the rights held by an individual and at the same instance balancing the authority and powers held by the state to curtail such rights. What is peculiar here is that, unlike Article 10 of the German Constitution or Article 13 of the Constitution of Switzerland there is no express mention of Right to privacy within the Constitution of India, therefore how can the Supreme Court of India, create rights without any explicit backing from any written texts within the Constitution?

The court in certain cases to overcome such issues uses their power of Constitutional Interpretation. Constitutional Interpretation refers to the judiciary's power to derive certain aspects and exegeses from hard laws in order to widen the scope of the applicability of a given statute or law when the text alone fails to do so. The court in the Puttaswamy Judgement has employed a number of methods of Constitutional Interpretation in order to read Right to Privacy into Article 21 of the Indian Constitution, upon Right to Life and Liberty. This paper aims to employ Comparative Constitutional Interpretation and Structuralist Constitutional Interpretation to analyse aspects of the K.S. Puttaswamy Judgement.

Comparative Constitutional Interpretation
Comparative Interpretation refers to the form of legal interpretation wherein the derivation of a definition or exegesis from a hard law is done by comparing a particular statue in reference to another country's constitutional provision(s) or case law(s). This is a method that needs extreme caution because any given case law needs to be read contextually with the domestic law.

This opinion is also backed by Sujit Choudhry, in his article in the Indiana Law Review:
The globalization of the practice of modern constitutionalism generally, and the use of comparative jurisprudence in particular, raise difficult theoretical questions because they stand at odds with one of the dominant understandings of constitutionalism: that the constitution of a nation emerges from, embodies, and aspires to sustain or respond to that nation's particular history and political traditions.[4]

Comparative interpretation is seen as a key method of interpretation in countries like South Africa that has borrowed heavily from constitutions around the world. For instance under Chapter II of the Constitution of South Africa which prescribes the Bill of Rights, Article 31(1)(b) and (c) explicitly mentions that any interpretation of the Bill of Rights is to be considered with reference to International Law which includes, treaties, conventions and other international statutes that South Africa is party to either by means of signing and/or ratifying.

In addition, Article 31(1)(c) says that any interpretation must also consider foreign laws that sit in line with the issue held by the court during interpretation. The same can be related to Article 51(c) of the Indian Constitution that prescribes that the state must respect all treaties and International Law obligations that the country is party to.

Countries like United States of America and United Kingdom are usually used as anchors for comparative interpretations in common law countries. The same has also been mentioned in the judgment of State v. Makwanyane[5], which says that comparative constitutional interpretation acts as a guiding factor in the interpretation of the South African Bill of Rights.

But this very assertion has been criticised by Peter Norbert Boukaert, wherein he argues that despite of comparative interpretation being regarded as one of the integral parts for the interpretation of the South African Bill of Rights; there is still no express mention of how it helps in the furtherance of formulation of an interpretation upon certain statutes.[6] A similar point is made by Bernard E. Harcourt, where he says that courts use comparative interpretation solely for the purposes of window dressing and does not analytically show as to how a particular foreign case law is even relevant in certain judgments.[7]

In addition Justice Scalia of the United States Supreme Court in Printz v. United States observed that the comparative interpretation is an inappropriate methodology for the interpretation of the constitution.[8]

Therefore, in order to make comparative law an effective method of constitutional interpretation, legal scholars have divided into three distinct methods. The three methods of Comparative Constitutional Interpretation are: Universalistic Interpretation; Dialogical Interpretation; and Genealogical Interpretation.

The Supreme Court in the Judgment of KS Puttaswamy has created a separate section that talks about comparative interpretation and its validity in the acceptance of Right to Privacy under the fundamental right of Right to Life and Liberty. Although, the judgment itself does fall prey to the the arguments given by Peter N. Boukaert and Bernard E. Harcourt, wherein the large number of cases act as nothing but mere citations leading to no conclusive end.

The judgment in my perspective is lacking in its applicability, solely because it merely mentions different case laws from a number of different nations, International Organisations and legislations; but fails to justify their impact in substantively effecting the provisions of privacy under Article 21 of the Indian Constitution apart from the common objective of upholding individual integrity and sanctity of one's privacy.

The sections of the judgment upon comparative law encompass two out of the three forms of comparative constitutional interpretation, being, namely genealogical interpretation and dialogical interpretation.

Genealogical Comparative Interpretation
The judgement uses Genealogical Constitutional Interpretation, which is evident by the countries from which the case laws and legislations are mentioned in the judgment. The judgment includes, case laws and legislations from United States of America, United Kingdom, South Africa, Canada, European Convention on Human Rights, European Charter and also the Universal Declaration of Human Rights. This method of constitutional interpretation has been most aptly described by Alan Watson, in 'Legal Transplants: An Approach to Comparative Law'[9], where he talks about how there can be two methods of genealogical interpretation.

Firstly, one that strictly evolves from the historical relevance of a foreign constitution vis-a-vis the constitution that is being interpreted. In the K.S. Puttaswamy Judgment, using United Kingdom as one of the nations for the purposes of comparative interpretation is a testament to the first method; because majority of the provisions of common law that is the legal system of India, are derived from the United Kingdom, therefore establishing a direct historical relevance of case laws from the United Kingdom. The same logic can be drawn for South African case laws which are a reflection of the common law system in the United Kingdom.

The second method mentioned by Alan Watson encompasses all foreign legal systems that have similar theoretical and jurisprudential framework of functioning. Within this, the case laws of United States of America are included and by virtue of being closely related to the American jurisprudence, so are Canadian Jurisprudence.

Similarly, European Convention on Human Rights, Universal Declaration of Human Rights (UDHR), and International Covenant on Civil and Political Rights (ICCPR) are given as relevant factors acting as the major guiding principles for the formulation of the privacy jurisprudence. in particular Article 12[10] of the UDHR that says that no one shall be subjected to arbitrary interference of privacy, Article 17 of the ICCPR that says that no one shall be subjected to unlawful or arbitrary interference of privacy. India is a signatory to the UDHR and has ratified the ICCPR, both of which have persuasive value over the legislations in the nation. In addition the ECHR, UDHR and ICCPR hold relevance because of the presence of Article 51(c).

Dialogical Comparative Interpretation
The second aspect of Dialogical Interpretation is best explained by G'nter Frankenberg in 'Critical Comparisons: Re-Thinking Comparative Law' which shows that the dialogical interpretation points towards the 'road not taken', which refers to the trajectories that have not been employed by the Constitution and how if certain provisions were present in the Constitution, would benefit the given legal realities of the nation.[11] This is an aspect that is laid down by a number of case laws and legislations mentioned in Part K of the judgment which shows the entire history of privacy judgments in the given countries.

This is backed by the mention of a number of different case laws that actively curtail the right to privacy of citizens, for instance in Wainwright v Home Office[12], the court held that right to privacy can be curtailed under certain circumstances. This further led to the evolution of one of the very first tests for the curtailment of the right to privacy, being that there should be a balance between the public interest for the maintenance of interest vis-s-vis public interest in favour of disclosure.

The court acknowledges the fact that all of these provisions from foreign case laws cannot be incorporated in the Indian legal system owing to the difference in the institutions present in various nations. On the contrary, the court aims on setting an example, as to how the addition of right to privacy in the Indian Constitution would benefit the rights of the citizens and also how certain doctrines and tests in the given case laws could be applied in cases that may be brought to court upon the issue of right to privacy. It further shows that the judgment does identify the positive and the negative aspects of the Constitutional guarantee of right to privacy that all citizens would be entitled to.

Structuralist Constitutional Interpretation
In order for the court to come to the conclusion that the right to privacy is an inalienable aspect of Right to life, it does not solely depend upon comparative constitutional interpretation, but also employs a number of different constitutional interpretational methods. This section focuses on the use of Structuralist method of constitutional interpretation in order to recognize right to privacy as a fundamental right within the Constitution of India.

The structuralist approach of constitutional interpretation has been most appropriately described by, Professor Charles L. Black Jr., as the derivation of constitutional rules that are veiled under complex relationships between the different constitutional institutions.[13] This view in the modern context has been elaborated upon by Professor Laurence Tribe in his publication in the Harvard Law Review, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of the Present wherein he states that apart from having a holistic approach to the constitution, the interpretation must also incorporate aspects of its logic, premise, animating features and layout vis-a-vis the constitutional document as a whole.[14]

The second perspective was given by Professor Akhil Reed Amar, in his book 'Foreword: The Document and the Doctrine', where he says that apart from a holistic approach to the constitution, the overreaching principles and themes should also be read for a having a structuralist approach.[15] These are two derivative schools of constitutional interpretation that devolve from Professor Black's description of structuralism.

The drawback of these two schools is that they broaden the idea presented by Professor Black extensively. Thus lead to dilution of the essence of the constitutional text which makes the interpretation of constitutional text more obscure. Therefore, the understanding of Structuralist approach that would be adhered to in this paper would be the one presented by Professor Charles L. Black Jr.

The Puttaswamy judgment draws a number of correlations between different articles and the preamble. This can be understood as the structuralist approach of interpretation taken by the court. The structuralist interpretation concentrates upon the word and the language of the law in order to appropriately relate it to the constitution at large. It refers to the values, theories and philosophies being inculcated by different parts of the constitution.[16]

The best representation of this, is the relation that is drawn between the term liberty being present in both the preamble and Article 21. The Preamble plays an essential role laying down principles that are inalienable from the constitution. The presence of the term liberty shows that liberty is one of the guiding principles of the constitution.

This read in reference to Article 21, further points to the fact the, right to privacy an interpretation of right to life is an aspect of Part III of the Constitution that an individual can't be deprived of under any circumstance.

The above-mentioned claim can further be supported by Justice Bobde's argument, which says that right to privacy is an inextricable right of every individual. In addition, any violation of right to privacy by the state or any other entity defined as the state under Article 12 would be an appropriate for a claim against the state.

This goes on to show that the claims for Right to Privacy are one that are present in the constitution itself and therefore the acceptance of right to privacy as an inalienable fundamental right by means of structural interpretation was based on reference to the other provisions within the constitution.

In the K.S. Puttaswamy judgment we see that the two methods of constitutional interpretation namely, Comparative and Structuralist Constitutional Interpretation, though not similar, end up supporting each other. The Structuralist approach helps in forming a foundation for the right to privacy to be accepted as an inextricable part of the Article 21, whilst laying the framework for the same when read with Article 12.

We can further see that structuralist school of interpretation stands as a more effective foundation when backed by comparative constitutional interpretation. This is because structural interpretation alone helps define the relevance of right to privacy being read within Article 21, limiting itself to the texts of the constitution.[17] Although, when read with the support of comparative constitutional interpretation, it points to the fact that similar claims are being held in other nations as well which have legal systems that are genealogically related to India which bolsters the primary argument made on the grounds of the Structuralist school of constitutional interpretation.

In conclusion, this shows that both Comparative and Structural Constitutional Interpretation though different form one another when seen independently; but when brought together to interpret the K.S Puttaswamy judgment, compliment each other, thus validating the Courts rationale behind incorporating Right to Privacy within Article 21of the Indian Constitution as a Fundamental Right to be guaranteed by the state.

  1. MP Sharma v. Satish Chandra (1954) SCR 1077
  2. Kharak Singh v. State of UP (1964) 1 SCR 332
  3. Justice K. S. Puttaswamy v Union of India, 2017 (10) SCALE 1
  4. Choudhury, Sujit (1999) "Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation," Indiana Law Journal: Vol. 74: Iss. 3, Article 4
  5. State v. Makwanyane 1995 (3) SALR 391 (CC)
  6. Peter Norbert Boukaert, Shutting Down the Death Factory: The Abolition of Capital Punishment in South Africa, 32 STAN. J. INT'LL. 287,304-05 (1996).
  7. Bernard E. Harcourt, Mature Adjudication: Interpretive Choice in Recent Death Penalty Cases, 9 HARV. HuM. RTS. J. 255,257,266 (1996).
  8. Printz v. United States, 521 U.S. 898, 921 n.11 (1997)
  9. Alan Watson, Legal Transplants and Law Reform, 92 Law Q. Rev. 79 (1976).
  10. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: [accessed 15 April 2018]
  11. G'nter Frankenberg, Critical Comparisons: Re-Thinking Comparative Law, 26 HARV. IhT'IL.J. 411 (1985).
  12. Wainwright v Home Office [2004] 2 AC 406
  13. CHARLES L. BLACK, JR., STRUCTURE & RELATIONSHIP IN CONSTITUTIONAL LAW(1969). This book was an compilation of the lectures given by Professor Black at Louisiana State University upon Citizenship in 1968.
  14. Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of the Present, 113 HARV. L. REV. 110, 110 n.3 (1999)
  15. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 30 (2000)
  16. ibid
  17. Supra. 10
Written By: Snehil Siddharth Khadia, Final Year Law Student, B.A. LL. B - O.P. Jindal Global University

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