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, which was a eight judge bench
and Kharak Singh v. State of UP
, 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
 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
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
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.
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
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.
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
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.
, which says that comparative constitutional interpretation acts as
a guiding factor in the interpretation of the South African Bill of Rights.
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. 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.
addition Justice Scalia of the United States Supreme Court in Printz v. United
observed that the comparative interpretation is an inappropriate
methodology for the interpretation of the constitution.
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
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.
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', where he talks about how there can be two methods of
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
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 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. 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, 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
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
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. 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
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.
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. 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.
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.
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
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. 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.
Written By: Snehil Siddharth Khadia,
- MP Sharma v. Satish Chandra (1954) SCR 1077
- Kharak Singh v. State of UP (1964) 1 SCR 332
- Justice K. S. Puttaswamy v Union of India, 2017 (10) SCALE 1
- Choudhury, Sujit (1999) "Globalization in Search of Justification: Toward a
Theory of Comparative Constitutional Interpretation," Indiana Law Journal: Vol.
74: Iss. 3, Article 4
- State v. Makwanyane 1995 (3) SALR 391 (CC)
- 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).
- Bernard E. Harcourt, Mature Adjudication: Interpretive Choice in Recent
Death Penalty Cases, 9 HARV. HuM. RTS. J. 255,257,266 (1996).
- Printz v. United States, 521 U.S. 898, 921 n.11 (1997)
- Alan Watson, Legal Transplants and Law Reform, 92 Law Q. Rev. 79 (1976).
- UN General Assembly, Universal Declaration of Human Rights, 10 December
1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html
[accessed 15 April 2018]
- G'nter Frankenberg, Critical Comparisons: Re-Thinking Comparative Law,
26 HARV. IhT'IL.J. 411 (1985).
- Wainwright v Home Office  2 AC 406
- 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.
- 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)
- Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L.
REV. 26, 30 (2000)
- Supra. 10
Final Year Law Student, B.A. LL. B -
O.P. Jindal Global University