Manu Chaturvedi† | 5 Regent J. Glob. Just. & Pub. Pol. 1

ABSTRACT

This Article seeks to analyze the use of American due process and privacy frameworks by the Indian Supreme Court in conceptualizing the right to privacy as an un-enumerated right in Chapter III (Fundamental Rights) of the Indian Constitution. The Article principally examines judicial developments in three seminal cases on privacy decided before the incorporation of substantive and procedural due process in the toolkit of the Indian judiciary. In doing so, it seeks to make a contribution towards understanding how Indian courts partake of transplantation, translation and migration of foreign jurisprudence from a comparative perspective. A few conclusions reached through the analysis are as follows: a) the three seminal Indian cases tasked with finding a right to privacy in the Indian Constitution selectively deployed American due process and privacy jurisprudence to push against the narrow conception of fundamental rights prevalent at the time; as a corollary; b) in attempting to develop privacy jurisprudence with the assistance of American cases, these cases contributed to the expansion of judicial review and total incorporation of substantive and procedural due process in India, subverting the original intent of the framers of the Indian Constitution; c) even after due process came to be accepted as a pillar of judicial review in India, the evolution of the right to privacy continued to draw on developments in American cases on privacy, and more qualitatively; and d) the use of American jurisprudence by the Indian Supreme Court to inform and develop its own jurisprudence suffered from methodological inconsistencies and broader incoherence, adversely affecting the doctrinal development of a right to privacy.

INTRODUCTION

Privacy is a catch-all concept that takes within its sweep different iterations. Couched in notions of liberty and dignity—the famed placeholders of a liberal constitutional democracy—it is amorphous and all pervasive: its absence is intuitively felt across a range of human experiences. It is so keenly implied in the basic guarantees provided to citizens of liberal constitutional democracies that one can be forgiven to wonder why the existence of a related right must even be the subject of inquiry. Nevertheless, such legal systems have toiled to build a solid doctrinal foundation upon which a right to privacy has come to rest. Some legal systems, like Germany, have built this right upon notions of dignity,1 whereas others, like the United States, have principally relied on the framework of liberty.2 Subsequently, the right to privacy has undergone a case-by-case substantiation.3

In the American experience, the right to privacy went from being a common law right4 to being conceived5 euphemistically in aspects of liberty,6 and then directly implied at various points (1870–1950) in the protections of the 4th Amendment against illegal searches and seizures.7 Gradually, U.S. courts would deploy the power of judicial review drawn from the due process clause and certain other interpretive techniques8 to expand the normative9 and descriptive10 scope of privacy implied in the Bill of Rights.11 The 1960s would witness a heightened period of case-bycase expansion of the right to privacy beyond the 4th Amendment, coinciding and reflecting social values that underscored the civil rights movement.12 During this period, the right to privacy would expand around issues like marriage,13 use of contraceptives both in14 and outside15 of marriage, and abortion.16 This trend ebbed and flowed, coming to the fore again at the turn of the millennium, when in rapid succession the Supreme Court moved to decriminalize homosexuality17 and assure marriage equality.18 Therefore, the doctrinal foundation and development of the right to privacy has been more or less grounded in solid domestic jurisprudence in the U.S. experience.19

In contrast, the very existence and doctrinal basis for a fundamental right to privacy in India remained the subject of much uncertainty until recently.20 After independence, between 1954 and 1975, three constitution benches21 of the Indian Supreme Court were tasked with finding a fundamental right to privacy.22 In each instance, the court was unwilling to conclude that the Indian Constitution envisaged a fundamental right to privacy;23 but in two of those cases, the court hedged against this finding, carving out limited protections under the guise of protecting personal liberty guaranteed under Article 21 of the Indian Constitution.24 Three factors primarily guided these outcomes: 1) An originalist interpretation of the Indian Constitution did not readily allow the judiciary to conclude that its drafters intended to include a fundamental right to privacy analogous to the 4th amendment in the Bill of Rights;25 2) The Indian judiciary did not have expansive powers of judicial review available to U.S. Supreme Court under the American due process doctrine, so it was hard pressed to ‘discover’ un-enumerated rights, and;26 3) These cases pitted privacy concerns against wide surveillance, and search and seizure powers of the State, which were perceived as unimpeachable in the initial years that followed independence.27

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† Manu Chaturvedi is a lawyer and academic based in New Delhi, India. His practice focuses on constitutional, civil, and commercial law, as well as social interest action concerning environmental degradation and civil liberties. He also lectures at O.P. Jindal Global Law School in Haryana, India. He has a B.A. LL.B from WBNUJS (Kolkata, India) and completed his LL.M. (Dean’s List) from U.C. Berkeley School of Law, where he specialized in Comparative and International Law. He is a 2017–18 Fulbright fellow.

1 James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1160 (2004).

2 Id. at 1161.

3 See generally Bert-Japp Koops et al., A Typology of Privacy, 38 U. PA. J. INT’L L. 483, 484, 500–02 (2017) (spatial privacy, bodily privacy, communicational privacy, proprietary privacy, intellectual privacy).

4 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 198 (1890).

5 See Prince v. Massachusetts, 321 United States 158, 163–64 (1944) (dealing with parental rights infringed by a state statute); Skinner v. Oklahoma, 316 U.S. 535, 537–38 (1942) (dealing with forced sterilization of criminally convicted).

6 Liberty in fact lies at the base of the doctrinal foundation of the right to privacy in America. Berger v. New York, 388 U.S. 41, 53 (1967); Katz v. United States, 389 U.S. 347, 351 (1967).

7 See Wolf v. Colorado, 338 U.S. 25, 28 (1949); Olmstead v. United States, 277 U.S. 438, 466 (1928); Boyd v. United States, 116 U.S. 616, 634–35 (1886).

8 See Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965) (discussing the penumbral right to privacy underlying the constitutional guarantee).

9 When privacy sub-serves values upon which other basic guarantees (like liberty and freedom) are founded. See Jeffrey M. Skopek, Reasonable Expectations of Anonymity, 101 VA. L. REV. 691, 699–700 (2015).

10 When privacy itself postulates a bundle of entitlements and interests. See id. at 701–02.

11 This was partly due to the fact that the protection of fundamental rights, including liberty, is ensured in the U.S. via the constitutional guarantee of due process. See U.S. CONST. amend. XIV, § 1.

12 See Griswold, 381 U.S. at 484–85.

13 Id. at 485–86.

14 Id.

15 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

16 Roe v. Wade, 410 U.S. 113, 153 (1973).

17 Lawrence v. Texas, 539 U.S. 558, 578 (2003); Romer v. Evans, 517 U.S. 620, 633–35 (1996).

18 Obergefell v. Hodges, 135 S. Ct. 2584, 2602–03 (2015); United States v. Windsor, 570 U.S. 744, 775 (2013).

19 See Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (critiquing reliance on foreign developments by the majority as a source of decriminalization of homosexuality).

20 Puttaswamy v. India, AIR 2017 SC 4161, ¶ 96.

21 Rarely constituted benches of five or more judges authorized to adjudicate issues involving interpretation of the Indian Constitution. INDIA CONST. art. 145, § 3.

22 Govind v. Madhya Pradesh, AIR 1975 SC 1378, ¶ 31–35 (India); Singh v. Uttar Pradesh, AIR 1963 SC 1295, ¶¶ 40–41 (India); Sharma v. Satish Chandra, AIR 1954 SC 300, ¶ 4 (Del.) (India) (seminal cases).

23 See Singh, AIR 1963 ¶¶ 40–42.

24 See Singh, AIR 1963 ¶¶ 40–42; Govind, AIR 1975 ¶¶ 34–35.

25 See Govind, AIR 1975 ¶¶ 34–35. Indeed, one would be hard pressed to find a provision which implies a right to privacy, say, as obviously as the American 4th Amendment.

26 See Marguerite J. Fisher, The Supreme Court of India and Judicial Review, 9 SYRACUSE L. REV. 30, 35 (1957).

27 See generally Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, 28 BERKELEY J. INT’L L. 216, 236 (2010) [hereinafter Mate]. The political climate was dominated by fear and State paternalism stemming from Gandhi’s assassination, fear of national disintegration, and proliferation of communal riots and/or secessionist movements. See id. at 220.