Certain times and places are better suited to one theory of constitutional
interpretation than are other times and places. On August 24, 2017, in an
extensive judgment authored by Justice D.Y. Chandrachud and co-signed by Chief
Justice Khehar, the nine-judge bench of the Supreme Court read the Right to
Privacy into the Constitution of India.
This paper is dedicated to understanding
the way the 9 judge bench came to this decision. What was going on in the
judges' head and their method of interpretation led to the introduction of the
Right to Privacy in India.
The paper will be divided into three parts. The major
part of this paper, Part I focuses on the use of comparative constitutional law,
its instances in the judgment, history, and need in the country. Part II lightly
touches upon the use of purposive interpretation of the law in this judgment and
Part III concludes my arguments about the Puttaswamy judgment.
Comparative Constitutional Interpretation
The use of comparative analysis of law is highly debated throughout the world.
Comparative law usually relates to a comparison between two or more legal
systems, understanding their similarities and differences.
University Washington College of Law organized a conversation between two
Supreme Court judges, Breyer and Scalia about the use of foreign law in U.S.
Constitutional cases with Scalia opposing it and Breyer supporting it. In this
conversation, Scalia categorized the use of foreign law into 3 levels: for
constitutional and statutory interpretation, to draft a new constitution and in
relation to institutional design.
According to him, only the first, usage in relation to constitutional and
statutory interpretation is problematic. He offers numerous arguments to support
his opinion, some of which are mentioned in this paper.
The first argument against the use of foreign law for statutory interpretation
is an ideological one. Alan Watson noted that judges might use foreign law to
corroborate a preconceived thesis.Following a similar line of thought,
Scalia pointed out that the use or neglect of foreign law is completely at the
discretion of the court.
In his minority opinion in Roper v. Simmons
Scalia stated: 'to invoke alien law when it agrees with one's own thinking, and
ignore it otherwise, is not reasoned decision making, but sophistry'. In this
case, the judges were not confirming their decision but merely sustaining their
'own idea of how the world ought to be, and their decree that it shall be so
henceforth in America'.
The second argument is cultural in nature. When judges use foreign law, they
isolate it from the context it originated it. The judges have no insight into
the jurisprudence surrounding the particular foreign law.6 Understanding foreign
law can require knowledge of another language and another culture, especially
for constitutional interpretation. Since judges are not necessarily experts at
other languages and cultures, it may lead to streamlining foreign law used.
instance, the Puttaswamy judgment uses laws of the USA, UK, South Africa, and
Canada. The constitutions of all four countries are written in English and so
are easy to understand for Indian judges. Because of such reasons, courts
popularly refer to the decisions of Commonwealth countries, not to East Asia,
South American or Islamic courts.7
Clearly, foreign court decisions are not considered as binding precedents in
India, so why are they still used by our courts? The question that arises is
whether they are used to fortify the decision's legitimacy within our country or
in the eyes of the rest of the world. Does the use of foreign law strengthen the
decision via the use of deeper sources or does it infringe on the uniqueness of
our constitution? In my opinion, the use of foreign law is only deepening the
research on which the judges base their judgments.
For instance, in the first
case relating to the Right to Privacy, Semayne's case was adjudicated in England
in 1604. In this scenario, the Puttaswamy judgment looks at this case not
because it is foreign law but because it is the first case that dealt with
Privacy in the legal community.
Using the utility approach Justice Breyers argues in favor of the use of foreign
law for statutory and constitutional interpretation. Another prominent source
that advocates the use of foreign law in domestic courts is Sujit Choudhary's
The Migration of Constitutional Ideas. They both merely rebut Scalia's
normative objections and doctrinal hostility towards the use of foreign law and
fail to propose their own justifications.
Scalia also appeals to history, tradition, authenticity, and original meaning of
the written constitution to go degrade the use of foreign law. An alternative
appeal to this is that of reason.9 O. Kahn Freund's noteworthy argument in favor
of comparative law was that the normative superiority of Scalia's originalist
position has never been provided justification for.
'Why should we care more about the intent of the Founders - who are long-dead as
well as culturally removed from us - than about the understandings of
contemporary judges struggling with the same problems of governance of a modern
welfare state in countries with which we must build a just and efficient global
order of law'?
One prominent part where the judgment discusses comparative law is in the
discussion of the M.P. Sharma11 case. According to the court, India does not
have any provision similar to the Fourth Amendment of the US Constitution. Thus,
there is a clear Right to Privacy in the USA but not it cannot be read into
Article 20(3) of the Indian Constitution. This is an example of the drawbacks of
using comparative law. In my opinion, Constitutions of these 2 countries cannot
be interpreted in a manner that one can negate the provisions of another.
One whole section, Part K, of the Puttaswamy judgment is dedicated to
comparative law. It peeks into the evolution of the Right to Privacy in other
legal systems of the world. The judgment disclaims the limited scope of
comparative law. The text should always be read in close contact with the
context it was written in. Thus, all foreign judgments are read keeping in mind
the diverse jurisdictions, their histories, and challenges faced by them.
The Canadian Charter does not overtly offer for a right to
privacy, certain sections of the Charter have been used by the Supreme Court of
Canada to recognize a Right to Privacy. Traditionally, the scope of Right to
Privacy in Canada was to protect individuals from an invasion of property
rights, but the Supreme Court of Canada used the Canadian Charter of Rights and
Freedoms of 1982 (the Charter
) to expand this to an individual's reasonable expectation of
Information on identity is covered under the Right to Privacy and it
has developed through judicial decisions with the dawn of technology and the
internet. Markedly, Canadian charter's Section 8 serves the citizens with
their primary source of constitutionally enforced
privacy rights against unreasonable intrusion from the state.
The South African Constitution contains explicit provisions that guarantee the
right to privacy. The Supreme Court of SA understands the right expansively by
interlinking equality, privacy, and dignity. A very important aspect of the
Right to Privacy is that it does not exist in personam or vacuum. It is a right
in rem and is enforceable against the world at large. This kind of
interpretation might be a product of the transition of the country from an
apartheid state to a democratic nation.
United States of America
The US Constitution also does not have an explicit Right to Privacy. But this
right has been protected under several amendments of the Constitution. This
development of the Right to Privacy jurisprudence displays that even though the
is not expressly mentioned anywhere in the constitution, the
courts have recognized this right and have in fact progressively extended the
scope of protection under the Right to Privacy.
Traditionally, the USA
recognized Privacy as protection of property and physical spaces. Now they have
changed their understanding and recognize the Right to Privacy in the 'person'.
America's Right to Privacy has developed in a manner that stops interference of
the state in private aspects of a person's life. American jurisprudence
considers that the Right to Privacy is intrinsic to the constitutional
guarantees of liberty and equal protection of laws.
The protection of the Right of Privacy in the UK has developed in recent times.
According to the Human Rights Act, citizens of the UK now have a Right to
Privacy. This has resolved many conflicts that arose concerning privacy in
previously decided cases. Incorporation of features of the European Convention
on Human Rights (ECHR) in the HRA has guaranteed the Right in domestic law.
Some say, judge the intent of the framers of the constitution to understand it.
Aharon Barak questions, Why should I? Is the purpose of interpretation to
further their intent? Isn't the purpose of interpretation to further the purpose
of the constitution?
Purposive interpretation refers to choosing the meaning or interpretation that
furthers the purpose of the norm embodied in the text. Under the purposive
approach, which has evolved from the old mischief rule, the courts interpret
statutes keeping in view the purpose of the legislation rather than relying
merely on the text of the particular statute. According to my analysis, the
court has a bias towards granting the Right to Privacy.
The bench has chosen cases and opinions only in furtherance of their view. They
have only used precedents that would strengthen and legitimize their argument.
The intent is a tool for understanding purpose. The relevant intent is the
intent concerning the purpose of the norm - it is a general purpose.
In discussing the landmark judgment of Kharak Singh
20 that is used as a
precedent by the court, there is a clear use of the purposive interpretation.
The judges of this case have looked at the purpose of the rather than literally
interpreting what is stated in Article 21 of the Constitution.
This is one of the very few articles of the Indian Constitution that can be
interpreted expansively. Here, Article 21 has been interpreted in a way where
domiciliary visits at night have been held to be invalidated on the basis that
it violates one's right to privacy. The meaning of the text and the intention of
the legislature was interpreted. We need to understand that our Constitution is
almost 70 years old and it attracted provisions and laws from other countries
with even older constitutions.
To keep up with contemporary times, our mindsets and so our constitution needs
to be able to change. It needs flexibility. Following the same line of thought,
the judicial interpretation of acts also has to be such that it one, can relate
to contemporary times and two, can keep framer's intent in mind. Since
interpretation is subjective, the framer's intent may be very different from the
application of the statute by the judiciary.
It should be kept in mind that Purposive Interpretation gives a lot of freedom
to the judiciary. They can interpret and thus develop the law in the manner they
choose. This has both, its pros and its cons. While there is a risk of judicial
misuse of power, they can also use it for speedier law developing process and so
the delivery of justice.
In this judgment, by reading the Right to Privacy into the Right to Life, the
court has used purposive interpretation. It has looked for the original intent
of the legislature. Thus, this judgment is based on a purposive understanding of
The contemporary relevance of declaring the Right to Privacy as a fundamental
right is a very important aspect to be considered. Keeping in mind the
importance of contemporary relevance, the court has very rightly undertaken the
comparative interpretation. In order to make sure that the Indian laws and the
rights of people match the international standards. It is imperative to analyze
and compare but its scope should be limited. It should not be used for statutory
or constitutional interpretation.
But, while understanding the changing contemporary times, it is also important
that the decisions should be in line with the law of land. The law that was made
by our forefathers keeping the best intentions at heart. Therefore, a purposive
interpretation was also necessary to be undertaken. The Right to Privacy is
intrinsic to Right to Life.
- Theories of Constitutional Interpretation, Exploring Constitutional
- Norman Dorsen, Relevance of Foreign Legal Materials in U.S.
Constitutional Cases: A Conversation between
Justice Antonin Scalia and Justice Stephen Breyer | International Journal of
Constitutional Law | Oxford Academic (OUP Academic October 1, 2005)
- A. Watson, Legal Transplants: An Approach to Comparative Law, (Athens
and London: The University of Georgia Press, 1974), Page 12.
- U.S. 551 (2005), Page 21.
- Supra Note 2, Page23. 6 Supra Note 17 Ibid.
- S. Choudhry (ed), The Migration of Constitutional Ideas, Cambridge:
University Press, 2006 Page 303- 319 9 P. Kahn, 'Comparative
Constitutionalism in a New Key', (2003), Volume 101, Michigan Law Review
Page 2685 http://www.jstor.org/stable/pdf/3595392.pdf?refreqid=excelsior%3A31635b981d9796a4c9158c7abba6bba5
- Ibid. Page 2678
- AIR 300
- Writ Petition (Civil) No 494 OF 2012
- Supra Note 12
- Canadian Charter of Rights and Freedoms, Part I,
- Supra Note 12
- Supra Note 12
- Barak Aharon, Hermeneutics and Constitutional Interpretation 
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