ABSTRACT

The existence of a civil society is premised on the coming together of individuals. Each of those individuals has certain rights, but some of those rights must be limited in order for a society to function. The eternal struggle of Anglo-American liberalism has been to find the proper balance between the taking of some rights with the protection of others. This tension between two fundamental needs of a democratic society has been thrust into the news recently in the cases of Mullins v. Masterpiece Cakeshop, State v. Arlene’s Flowers, and Elane Photography v. Willock. In these cases, a cake-maker, a florist, and a photographer refused to, respectively, create a custom wedding cake, create custom wedding flower arrangements, and photograph a wedding. The couples each brought suit using their state’s statute which prohibited refusing service on the basis of sexual orientation. The service providers raised two defenses based in the First Amendment: the right to be free from compelled speech and the right to free exercise of religion. While both arguments are germane to the issues presented in the cases, this Note’s purpose is to provide a more thorough and searching analysis of the individual rights that are being threatened. In particular, this Note will examine three potential bases for alternative arguments supporting the liberty interests in those cases. These potential bases include the Thirteenth Amendment and its prohibition of involuntary servitude; property law and the right to exclude; and contract law and the freedom to, or more specifically from, contract. While arguments based on these doctrines are not often raised in modern constitutional jurisprudence, a broader analysis based on these doctrines can shed light on the various interests at stake in these cases and offer new ways of thinking about the timeless struggle to balance rights in American society.

INTRODUCTION

Liberty is an illustrious concept, an ideal that fills the hearts and minds of each successive generation with promises of a better tomorrow, and a principle that serves as a foundation of western civilization. However, liberty is as elusive as it is illustrious. Sometimes, liberty is even counterintuitive. In today’s world, there are many conflicts between positive rights, those which must be given, and negative rights, those which are there to take away. In order to pursue the greatest liberty for the most people, negative rights must be emphasized, because giving positive rights to some inherently involves taking negative rights from others.

The distinction between positive and negative rights is often at the forefront of political and legal debates. The right to abortion expounded in Roe v. Wade1 is a negative right, and the Court denied the positive right to a required abortion funding in Maher v. Roe.2 The Hobby Lobby case balanced the negative right of the owners of Hobby Lobby, a closely held corporation, to their religious beliefs with the positive rights of the workers to health insurance that covered contraceptives.3 Every election there seems to be debate about taxes, freedom from which is a negative right, and social safety nets, which are positive rights. These conflicts are common place in today’s society. This Note examines one such clash.

I. THE PROBLEM

A. Masterpiece

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodation laws to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.4

In July 2012, Craig and Mullins, a same sex couple, entered Masterpiece.5 Masterpiece, located in Lakewood, Colorado, is owned by Jack Phillips.6 Mr. Phillips creates custom cakes: “Custom designs are his specialty: if you can think it up, Jack can make it into a cake!”7 Craig and Mullins asked Phillips to make them a custom cake for their wedding, but Phillips refused due to his religious beliefs.8 Mr. Phillips made it clear that he would be more than willing to sell or make them any other sort of baked good, just not a cake for their wedding.

Craig’s mother later called Phillips; he informed her that Masterpiece did not make cakes for same-sex weddings due to Phillips’s religious beliefs and because same-sex marriages were not recognized in Colorado at the time. 10 Craig and Mullins then filed charges of discrimination against Masterpiece.11

Colorado’s statute, which was the basis for the suit, declared it unlawful for a place of public accommodation to refuse to provide a service for someone, among other reasons, because of sexual orientation. 12 In Colorado, a place of “public accommodation” is “any place offering services . . . to the public . . . .” 13 Mr. Phillips defended himself by claiming the statute, as applied, violated his First Amendment rights to free exercise of religion 14 and freedom from compelled speech. 15 The Court handed down a decision in favor of Mr. Phillips, but it was on limited grounds. 16

B. Arlene’s Flowers

The state of Washington has a similar statute prohibiting discrimination by service providers.17 This statute is the basis for a case similar to Masterpiece—State v. Arlene’s Flowers, Inc. 18 Barronelle Stutzman owns Arlene’s Flowers Inc., located in Washington.19 Stutzman, though she had been happy to sell the couple flowers in the past, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed, a same-sex couple. 20 Stutzman says she then gave Ingersoll the name of another florist.21 Both the flower shop and the couple drew a slew of media attention.22 Ingersoll received a variety of offers from other florists to do his wedding about twenty times over.23 But the media coverage was far from unified; Stutzman received threats to her business, and the couple received so much attention that they scaled down their wedding and had it in their own home.24 Stutzman defended the suit on grounds similar to those in Masterpiece.25

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† Law student, Northern Illinois University Law School.

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

2 Maher v. Roe, 432 U.S. 464 (1977).

3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 1 (2014).

4 Masterpiece Cakeshop, Ltd., v. Colo. Civ. Rts. Commission, 584 U.S. 1 (2018).

5 Id.

6 Id. at 3.

7 Masterpiece Cakeshop, https://masterpiececakes.com (last visited Oct.  8, 2018).

8 Masterpiece Cakeshop, 584 U.S. at 1.

9 Id. at 4.

10 Id.

11 Id. at 1.

12 “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” COLO. REV . S TAT. § 24-34-601(2)(a)(2018).

13 Masterpiece Cakeshop, 584 U.S. at 5.

14 Id. at 7.

15 Id.

16 See id. at 18.

17 “(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.” WASH. REV. CODE ANN. § 49.60.215(1)(LexisNexis 2011).

18 State v. Arlene’s Flowers, Inc., 389 P.3d 543, 551 (Wash. 2017).

19 Id. at 548.

20 Id.

21 Id. at 549.

22 Id.

23 Barronelle Stutzman, I’m a Florist, but I Refused to Do Flowers for My Gay Friend’s Wedding, THE WASHINGTON POST (Jan. 10, 2018), https://www.washingtonpost.com/posteverything/wp/2015/05/12/im-a-florist-but-i-refused-to-do-flowers-for-my-gay-friends-wedding/?utm_term=.3a3c313b6351).

24 Arlene’s Flowers, 389 P.3d at 549.

25 Id. at 552.

 

ABSTRACT

The nations of Europe have been characterized in recent years by a significant increase in cultural and religious diversity. While this has brought a cultural richness, it has also increased cultural tensions. As one commentator has noted, “Clashes, provocation, and dissent between religiously and culturally different groups have characterized many mainstream European concerns.”1

In E.S. v. Austria (2018), the European Court of Human Rights (ECtHR) upholds Austria’s effort to promote “religious peace” and “mutual tolerance” by convicting an individual for making statements highly critical of Mohammad.2 The ECtHR does so by offering Austria a wide margin of appreciation to determine how to navigate the difficult challenges of religious and cultural diversity, but also by largely ignoring the text of the European Convention of Human Rights – and even other principles of international law on which it purports to rely.3 It does so also in the name of strengthening freedom of religion. But the ECtHR is mistaken. Not only does E.S. severely restrict freedom of expression, it also may actually reduce the freedom of religion as understood in the Convention.

Part One of this Article focuses on the unique factual and political circumstances that gave rise to the prosecution of E.S. as well as the analysis of the courts, from the Austrian national courts to the ECtHR. Part Two discusses how the ECtHR’s decision in E.S. v. Austria is deeply flawed in three ways. First, the ECtHR engages in almost no serious textual analysis of the relevant Convention articles. Second, in the place of meaningful textual interpretation, the ECtHR applies the margin of appreciation doctrine to support its own analysis which offers little clarity or certainty and leads to a troubling result. Third, the ECtHR reaches a decision that puts it in tension with other key international law standards that it identifies as relevant to the case.

I. PART ONE: CASE HISTORY

A. Facts of the Case

In January of 2008, the Freedom Party Institute (Bildungsinstitut der Freiheitlichen Partei sterrecihs) held several seminars entitled “Basic Information on Islam” (Grundlagen Des Islams).4 The Freedom Party is a right-wing populist and national-conservative political party in Austria.5 The party began attacking the influence of Islamic extremism in the early 1990s after the issue of immigration became an increasingly important issue for voters in Austria.6 In 1993, the Freedom Party was among the groups promoting the controversial “Austria First” initiative, which sought to collect signatures for a referendum on immigration restrictions.7 The party expanded its attack on Islamic extremism to include Islamisation and the increasing number of Muslims in general.8 The party has also fought the practice of distributing free copies of the Koran.9

The “Basic Information on Islam” seminars were open to the public and were publically advertised on the Freedom Party website.10 In addition, the party had distributed a leaflet specifically aimed at young voters, promoting the seminars.11 Two seminars were held on October 15th and November 12th of 2009, with thirty participants each.12 E.S.13 was the main speaker and spoke for a total of twelve hours during both seminars.14

E.S. made two statements during this twelve hour period that placed her in legal jeopardy with the Austrian court:

and;

E.S.’s statements concerned the marriage of Muhammad to Aisha as recorded in the Sahih Al-Bukhari, one of the Kutub al-Sittah (six major hadith collections) of Sunni Islam.17 Sahih Al-Bukhari provides, “It is reported from Aisha that she said: The Prophet entered into marriage with me when I was a girl of six . . . and at the time [of joining his household] I was a girl of nine years of age,” and also, “Khadija died three years before the Prophet departed to Medina. He stayed [alone] for two years or so. He married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.”18

E.S.’s statement, “[w]e have huge problems with that today, that Muslims get into conflict with democracy and our value system” referred to child marriage in many predominately Muslim countries.19 The Sahih Al-Bukhari has influenced domestic law concerning the age of marriage in many predominately Muslim countries. This practice has been condemned by the UN Committee on the Rights of the Child that states, “[g]irls [in many Muslim nations] cease to be [a] minor after [nine] lunar years. Thus, after this age, they are excluded from the protection of the Convention on the Rights of the Child.”20 “According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old” were married, a phenomenon largely rooted in predominately Muslim countries.21 “The minimum age for marriage in Iran is 13 years for girls and 15 for boys.”22 It has been reported that in Iran, 43,459 girls under 15 years became married in 2009 and 716 girls under 10 years married in 2010.23 The Grand Mufti of Saudi Arabia said in 2012 that girls are ripe for marriage at 12 years, and it is only since 2013 that the minimum age of marriage for girls was raised to 16 and the consent of the child required.24

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† Jeffrey Brauch is a professor at Regent University School of Law and the executive director of the school’s Center for Global Justice, Human Rights, and the Rule of Law. Among other courses he teaches International Human Rights and International Criminal Law.

†† Cody Goings attends Regent University School of Law. He is thankful to Professor Brauch and his wife, Leigh Goings.

1 Parvati Nair, Cultural and Religious Diversity in Europe: The Challenges of Pluralism, IEMED. MEDITERRANEAN YEARBOOK 328, 328 (2014), https://www.iemed.org/observatori/arees-danalisi/arxius-adjunts/anuari/anuari2014/nair_religious_diversity_europe_pluralism_IEMed_yearbook_2014_EN.pdf.

2 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶¶ 41, 44 (2018).

3 Id. ¶ 44.

4 Id. ¶ 7.

5 HANSPETER, KRIESI ET AL., POLITICAL CONFLICT IN WESTERN EUROPE 52 (Cambridge Univ. Press 2012); JOHANNES JÄGER & ELISABETH SPRINGLER, ASYMMETRIC CRISIS IN EUROPE AND POSSIBLE FUTURES: CRITICAL POLITICAL ECONOMY AND POST-KEYNESIAN PERSPECTIVES 110 (Routledge, 2015); Wolfram Nordsieck, Austria, PARTIES & ELECTIONS EUR. (2017), http://www.parties-and-elections.eu/austria.html.

6 Susi Meret, The Danish People’s Party, the Italian Northern League and the Austrian Freedom Party in a Comparative Perspective: Party Ideology and Electoral Support, SPIRIT PHD SERIES 1, 194 (2010), http://vbn.aau.dk/files/20049801/spirit_phd_series_25.pdf.

7 Id.

8 See id. at 198–99; see also Vexed in Vienna, ECONOMIST, May 21, 2016, at 50.

9 Disaster averted—for now, ECONOMIST, May 28, 2016, at 12.

10 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶ 7 (2018).

11 Id.

12 Id. ¶ 8.

13 The Court granted E.S. anonymity on the Court’s own motion under Rule 47 § 4 of the Rules of Court; which provides: “Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorize anonymity or grant it of its own motion”. Eur. Ct. H.R., Rules of Court, at 24–25, (Aug. 1, 2018), https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf.

14 E.S., App. No. 38450/12 ¶ 34.

15 Id. ¶ 13.

16 Id.

17 HAROLD G. KOENIG & SAAD AL SHOHAIB, HEALTH AND WELL-BEING IN ISLAMIC SOCIETIES 30–31 (Springer 2014) [hereinafter KOENIG & SHOHAIB].

18 Zahid Aziz, Age of Aisha (ra) at time of marriage, LAHORE AHMADIYYA MOVEMENT, http://www.muslim.org/islam/aisha-age.htm(last visited Feb. 21, 2019).

19 E.S., App. No. 38450/12 ¶ 13.

20 GREGOR PUPPINCK, Written Observations in the Case of E.S. v. Austria, 8 (Eur. Ctr. for Law & Justice 2017), http://9afb0ee4c2ca3737b892-e804076442d956681ee1e5a58d07b27b.r59.cf2.rackcdn.com/ECLJ%20Docs/Written%20Observations%20E.S.%20v.%20Austria.pdf[hereinafter Puppinck].

21 Id.

22 Id.

23 Robert Tait, Alarm as hundreds of children under age of 10 married in Iran, TELEGRAPH (Aug. 26 2012), https://www.telegraph.co.uk/news/worldnews/middleeast/iran/9500484/Alarm-as-hundredsof-children-under-age-of-10-married-in-Iran.html.

24 Sara Anabtawi, Girls ready for marriage at 12 – Saudi Grand Mufti, ARABIAN BUS. (Feb. 20, 2019), http://www.arabianbusiness.com/girls-ready-for-marriage-at-12- saudigrand-mufti-455146.html#.V0NBKfmLRaQ.

INTRODUCTION

“Jihad needs very many things. Firstly it needs money. Much is
dependent on money today for jihad.”

– Omar Abu al-Chechen, Syrian Terrorist Leader¹

The war against international terrorism is waged on many fronts. It is waged with conventional military campaigns in open combat, and by Special Operations Forces in the dark of night. It is fought by intelligence services and law enforcement agencies. It is also fought in the courtroom. This includes both criminal prosecutions of terrorists and those who support them, and increasingly, civil causes of action brought by victims and their families.

 There are two main ways for victims of terrorism to bring civil claims for acts of terror. The first, and most well-established, is to file suit directly against a state sponsor of terrorism under an exception in the Foreign Sovereignties Immunity Act.2 The second, less well-known way, is to file directly against persons who have materially assisted Foreign Terrorist Organizations in carrying out the attacks.3 This is a rapidly developing area of law that has the potential not only to compensate victims, but to help defeat terrorist groups by depriving them of the funding that is essential to their operations.4

I. CIVIL JUDGMENTS AGAINST STATE SPONSORS OF TERRORISM

Federal law provides a private right of action against foreign countries that are designated state sponsors of terrorism, for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such acts.5 Under 28 U.S.C. § 1650A, suit may be brought against these states for personal injury or death caused by any of the acts listed above.6 Liability extends to any official, employee, or agent of the foreign state who was acting within the scope of his or her office, employment, or agency.7

A complete understanding of the specific terms in the statute is essential to bringing a successful case under § 1605A. Because sovereign immunity is a jurisdictional concern, in order to succeed, the complaint must allege that the state or its agent committed unlawful acts exactly as defined under the statute.8 The definitions of “torture” and “extrajudicial killing” are incorporated into § 1605A through the Torture Victim Protection Act of 1991 (TVPA).9 The TVPA is a federal law that imposes civil liability for acts committed by a state or its agents under actual or apparent authority of the state or under the color of law.10 This qualification is important. It means that torture or extra-judicial killing will not be actionable under § 1605A unless the plaintiff is able to show that the person carrying out the act was doing so as an agent of the foreign state.

TVPA defines extrajudicial killing as a “deliberated killing not authorized by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”11 The definition specifically excludes executions that are lawfully carried out under the authority of a foreign nation.12 “Torture” under the TVPA means:

The term “aircraft sabotage” is incorporated into § 1605A from Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.14 Similarly, the definition of “hostage taking” is incorporated into § 1605A from Article 1 of the International Convention Against the Taking of Hostages.15

The term “material support or resources” is incorporated into § 1605A from 18 U.S.C. § 2339A, which is a criminal statute making it unlawful to knowingly provide any sort of material support to terrorists.16 Under § 2339A, material support or resources is defined as, “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, and transportation, except medicine or religious materials.”17 As will be discussed below, material support has been construed quite broadly by the courts. However, when making allegations under § 1605A, it is imperative to check the statute carefully to ensure that the facts in the complaint precisely support the statutory definitions. Complaints that do not meet the statutory definitions may be dismissed sua sponte.18

A. Subject Matter Jurisdiction: Foreign Sovereign Immunities Act

In general, federal district courts have original jurisdiction over all civil matters arising under the Constitution, laws, or treaties of the United States.19 Because international terrorism is regulated by federal law and by numerous international treaties ratified by the United States, it might seem obvious that the federal courts would have “federal question jurisdiction” over civil terror-related actions against foreign states.20 However, in most instances, this is not the case. Even if the wrongful act in question meets one or more of the statutory definitions outlined above, the Foreign Sovereign Immunities Act (“FSIA”) will prevent a plaintiff from filing suit against the great majority of foreign states.21

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† Bryan Peeples is a graduate of Regent University School of Law. Bryan is also a recent retiree from the United States Navy, where he served for twenty-two years as a helicopter pilot. His Navy assignments include multiple combat deployments, culminating with a tour as the Commanding Officer of Helicopter Sea Combat Squadron NINE deployed aboard the aircraft carrier USS GEORGE H.W. BUSH. He also served as the Force Rotation Operations Officer for the U.S. Joint Staff, where he developed strategic plans and presented briefs to the highest levels of the nation’s military and civilian leadership. Bryan holds a Bachelor of Science in Biology, cum laude, from the University of South Carolina, and a Master of Arts with distiniction in National Security Strategy with a minor in Leadership and Ethics from the United States Naval War College. He attended law school while still on active duty and graduated number two in his class. While at Regent, Bryan earned twelve “Book Awards” for receiving the top grade in a law school class (a school record), and was selected by the law school faculty for the prestigious Honorable Richard B. Kellam Professionalism Award. Bryan works as an Associate Attorney at Pender & Coward P.C., a prominent law firm in Virginia Beach, Virginia, where he works in the areas of environmental law, worker’s compensation defense, construction, anti-terrorism and military law.

1 Thomas Grove, Militants from Russia’s North Caucasus join “jihad” in Syria, REUTERS, (Mar. 6, 2013, 2:25 PM), https://www.reuters.com/article/us-syria-crisis-russiamilitants/militants-from-russias-north-caucasus-join-jihad-in-syriaidUSBRE9251BT20130306.

2 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1605A(a (1)(c) (2012).

3 Id. at § 1605A(a)(1).

4 See Human Rights, Terrorism and Counter-terrorism, OFFICE OF THE U.N. HIGH COMM’R FOR HUM. RTS., (July 2008), https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf.

5 Foreign Sovereign Immunities Act § 1605A.

6 Id.

7 Id.

8 Id.

9 Torture Victim Protection Act of 1991 § 3(a)–(b); 28 U.S.C. § 1350 (2012).

10 Torture Victim Protection Act of 1991 § 2(a); 28 U.S.C. § 1350 (2012).

11 Torture Victim Protection Act § 3(a).

12 Id.

13 Torture Victim Protection Act § 3(b)(1).

14 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation art. 1, Sept. 23, 1971, 974 U.N.T.S. 14118.

15 International Convention Against the Taking of Hostages, art. 1, Dec. 17, 1979, 1316 U.N.T.S. 21931.

16 18 U.S.C. § 2339A(a)–(b)(1) (2012).

17 Id.

18 28 U.S.C. § 1605A(h) (2012); See Legal Information Inst., sua sponte, CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/sua_sponte [hereinafter Cornell Law School].

19 28 U.S.C. § 1331 (2012).

20 18 U.S.C. § 2338 (2012).

21 Foreign Sovereign Immunities Act § 1605.

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.