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Constitutional Law: Changing Times and Changing Needs of India

Certain times and places are better suited to one theory of constitutional interpretation than are other times and places.[1] 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.

The American 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.[2]

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.[3][4]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. Simmons4
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'.[5]

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.

For 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 book,

The Migration of Constitutional Ideas.[6] 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.

Kahn wrote,

'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'?[7][8]

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.[9]

Canada

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 privacy.

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.[10] Markedly, Canadian charter's Section 8 serves the citizens with their primary source of constitutionally enforced
privacy rights against unreasonable intrusion from the state.[11]

South Africa

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 word privacy 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.[12]

United Kingdom

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.[13]

Purposive Interpretation

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.[14] 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.[15][16]

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 law.

Conclusion
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.

End-Notes:
  1. Theories of Constitutional Interpretation, Exploring Constitutional Conflicts, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
  2. 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)
  3. A. Watson, Legal Transplants: An Approach to Comparative Law, (Athens and London: The University of Georgia Press, 1974), Page 12.
  4. U.S. 551 (2005), Page 21.
  5. Supra Note 2, Page23. 6 Supra Note 17 Ibid.
  6. 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
  7. Ibid. Page 2678
  8. AIR 300
  9. Writ Petition (Civil) No 494 OF 2012
  10. Supra Note 12
  11. Canadian Charter of Rights and Freedoms, Part I,
  12. Supra Note 12
  13. Supra Note 12
  14. Barak Aharon, Hermeneutics and Constitutional Interpretation [1993] Yale Law School Legal 3 Scholarship Repository

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