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

† 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.

Justice Stephen Breyer’s latest book, like his previous literary efforts, falls within the mainstream of progressive statutory and constitutional interpretation. He furthers this agenda while at the same time assuring his readers that he is merely giving a neutral survey1 of the problems courts face when dealing with an ever smaller and interdependent world. Interdependence with the rest of the world is one of the primary themes of the book, and Breyer wants to “explain just what that abstract term means concretely for the work of one American institution, the Supreme Court.”2

In order to understand the full implications of Breyer’s argument in The Court and the World, one must first understand the argument in his earlier book, Active Liberty: Interpreting Our Democratic Constitution3 . In Active Liberty, Breyer argues that the liberty that the Founders were protecting was an ancient one—not just the concept of being left alone by the government, but a system in which all citizens have the right to active participation.4 The idea of a citizen being left alone by his government is a modern theory that included freedom from government,5 but it means much more. It was the “freedom of the individual citizen to participate in the government and thereby to share with others the right to make or to control the nation’s public acts.”6 Breyer’s emphasis is the former—ancient liberty—active democratic participation by citizens. Breyer states: “My thesis is that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.”7 Breyer makes this sound like a positive interpretive perspective—power to the people, but his explanation takes this power back from the people and deposits it in the Court. He writes: “[T]he Constitution’s democratic objective [is] not simply restraint on judicial power . . ., but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike.”8

Breyer is asserting that in order to protect liberty rights, the Court has the authority to define the Constitution with democratic objectivity (i.e., what best protects democracy, even if it goes beyond the natural boundaries of the text). For Breyer, the boundaries that inhibit the Court are not textual, but the Court’s authority to protect democracy, which as it regularly turns out, is limitless. This Breyer calls the “democratic objective”9 of the Constitution. In fact, the entire thesis of Active Liberty is the “Constitution’s democratic objective.”10 He supports this thesis in the main body of the book by “examples [that] suggest that increased emphasis upon that [democratic] objective by judges when they interpret a legal text will yield better law–—law that helps a community of individuals democratically find practical solutions to important social problems.”11 Sounds positive, but what does this mean and what should the Court’s methodology be to reach that objective? Breyer’s answer—a judge must consider “practical consequences, that is, consequences valued in terms of constitutional purposes, when the interpretation of constitutional language is at issue.”12 It’s the consequences, not the text, that should be primary in a judge’s consideration. The text must bend to the desired outcome.13 This is active liberty. A more appropriate title for this book would be “Active Judiciary.”

ABSTRACT

Muslim societies now have embraced, more or less, the ideas and institutions of constitutionalism. It may be said that the rule of law, public consent to the political authority, and basic citizens’ entitlements are among the main constituent elements of constitutionalism. Modern law holds a particular status among those elements. It is, inter alia, state-made and amoral, and functions as a unifying thread in the fabric of constitutionalism, which in turn regulates a nation (i.e., a pluralistic society). Muslims always have insisted that the law should comply with or at least not contradict Sharia. They have in fact conceived modern law as a form, which can and ought to be instantiated with the substance of Sharia. This substance (Sharia) is, however, supposed to be, inter alia, jurist-made and moral. Could such a substance accommodate the public consent orientation and the amoral nature of legal rules that regulate the public life of a pluralistic society, and secure the rights of its members? If the answer is in the negative, what could be the way out?

INTRODUCTION

It goes without saying that over the last one and a half centuries, modern ideas and institutions, and in particular, constitutionalism with its extended ramifications, have found their way into traditional Muslim societies in one way or another.¹ The adoption or implementation of constitutional ideas and institutions in those societies, however, has not been an easy task; and the process has not yet reached its culmination point.² It is difficult to locate a Muslim society that can genuinely assert that it has managed to establish and develop, in a proper sense, constitutional concepts and institutions such as the rule of law, individual liberty and democracy.³

Constitutionalism, as an ideal, which soon will be explored in more detail, has suffered various setbacks in Muslim polities. The setbacks may be classified into two main categories of theoretical and practical, as they may also be divided into political, cultural, social and economic.⁴ This Article concentrates on one of the theoretical or cultural hindrances to the adoption of constitutionalism by Muslim societies. That is to say, Muslims seem to have misconceived one of the most significant elements (if not the most important element) of modern life, namely the “law.” Hence, they have apparently been unable or unwilling to bring about and benefit from a rather legitimate and functioning political system on the basis of the rule of law.⁵ In consequence, they have deprived themselves of a healthy economic, social and cultural environment that is usually based, inter alia, on a robust legal system.⁶

In what follows, first, this Article briefly explains the main pillars of constitutionalism. Second, the characteristic features of the law as a unifying element of these pillars are examined. Third, the concept of Sharia is explored. Fourth, and in the light of the discussions in the previous two sections, the conundrum with which Muslims have been confronted in the age of constitutionalism is illustrated. Finally, this Article concludes by making a few remarks on the likely ways out of the problem.

I. CONSTITUTIONALISM

Constitutionalism is indeed a broad title for various values and institutions that are supposed to limit the powers of the government.⁷ It may be said, however, that the basic and original value is that of limiting the government to law.⁸ Even those constraining values that are really complementary to the law, such as the public consent to the political authority and the basic entitlements of the people, ought to be eventually actualized by the law otherwise they merely remain at a rhetorical level with no practical impact.⁹ It should be added that the limitation imposed by law defines both the range of powers and legitimacy of the government.¹⁰ On the other hand, putting aside the possibility that governments can limit themselves willingly, the idea of constitution has been put forward in order to entrench the said constraints in such a way that power-holders may not readily remove them.¹¹

Accordingly, the first pillar of constitutionalism is the idea and institution of the rule of law.¹² The core idea of the rule of law refers to the substitution of the rule of man by the rule of law.¹³ That is to say, the rule of law has been constantly believed to be, and is indeed, among other things, the best way of countering the problem of the arbitrary rule of a man or a group of men over other members of a society, due to which most of the misfortunes of social life arise.¹⁴

The second pillar of constitutionalism is the system of separation of powers.¹⁵ The necessities of an efficient management of public affairs, and also the idea of the imposition of limits on this management have led to a division of labor among the holders of public powers—a mechanism that was later called the separation of powers of the government (i.e., the separation of the legislature, the judiciary and the executive).¹⁶ Also, in order for the division of powers and responsibilities not to undermine the rule of law, it is required to be a balanced separation.¹⁷ The government must be balanced in the sense that none of the three powers should hold so much power and discretion that outweighs the other two. Hence, any imbalance means one branch is able to interfere with and exert influence on another branch’s proper functioning, thus leading to an arbitrary method of governance.¹⁸

The third pillar of constitutionalism, public consent, took shape when endeavors were made to find an answer to the question raised against the wide range of powers and responsibilities held by the government at the early modern era.¹⁹ In other words, public governance reached a point in its history where the divine and natural models of, and justifications for, an extended and hugely powerful political and administrative authority were no longer considered to be a matter of fact.²⁰ There was indeed a strong demand for some kind of explanation and justification for that authority.²¹ A theory of public consent was first put forth by certain scholars like Thomas Hobbes,²² and then developed into a social contract framework by others such as Jean-Jacque Rousseau.²³ On this basis, only those governing arrangements and powers that had been consented to by the public were legitimate.²⁴

1 See Said Amir Arjomand, Introduction to CONSTITUTIONAL POLITICS IN THE MIDDLE EAST: WITH SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN, AND AFGHANISTAN 1–3 (Said Amir Arjomand ed., 2008).
2 See id. at 1–10 (tracing the difficulties that the Islamic world has experienced in creating constitutional democracies).
3 See, e.g., id. at 5, 67–70.
4 See Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 19, 19–32 (Rainer Grote & Tilmann J. Roder, eds., 2012); see also Ebrahim Afsah, Contested Universalities of Internal Law: Islam’s Struggle with Modernity, 10 J. HIST. INT’L L. 259, 268–69 (2008).
5 Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 CONN. J. INT’L L. 329, 331 (2010).
6 See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 26 (1995) [hereinafter MULTICULTURAL CITIZENSHIP]; Strobe Talbott, Forward to KENNETH, W. DAM, THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT, 14 (2006) (discussing the importance of institutions to creating a strong economy); Stephen Haggard & Lydia Tiede, The Rule of Law and Economic Growth: Where Are We?, 39 WORLD DEV. 673, 681 (2011); Will Kymlicka, The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies, 61 INT’L SOC. SCI. J. 97, 106–08 (2010) (explaining how instability causes fear and suppression of minorities, whereas when nations feel secure they are more likely to treat their minorities fairly).
7 See Larry Alexander, Introduction to CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 2–3 (Larry Alexander ed., reprt. 1999) (1998) (discussing the concept of constitutionalism as meta-rules that are composed of agreed upon norms).
8 See N.W. BARBER, THE CONSTITUTIONAL STATE, 78 (2010); CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 21 (rev. ed. 1947) (1940); BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 114 (2004).
9 See M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 1 (1967).
10 See Tom Ginsburg, Constitutionalism: East Asian Antecedents, 88 CHI.-KENT L. REV. 11, 12–13 (2010).
11 Larry Alexander, What are Constitutions, and What Should (and Can) They Do? 28 SOC. PHIL. & POL’Y 1, 3–4 (2011).
12 ALEXANDER, supra note 7, at 4–5.
13 Joseph Raz, The Rule of Law and Its Virtue,  93 L. Q. REV. 195, 196 (1977).
14 See id. at 202–03, 205.
15 VILE, supra note 9, at 1–2.
16 See id.; see also; ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 14–17 (1998); Torsten Persson et al., Separation of Powers and Accountability, 112 Q. J. ECON. 1163, 1164, 1166–68, 1198–99 (1997).
17 See EOIN CAROLAN, THE NEW SEPARATION OF POWERS: A THEORY FOR THE MODERN STATE 183–84 (2009); JAMES W. CEASER, In Defense of Separation of Powers, in SEPARATION OF POWERS: DOES IT STILL WORK? 168, 179–81, 186 (Robert A. Goldwin & Art Kaufman, eds., 1986); see also D. Brooks Smith, Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad, 7 AVE MARIA L. REV. 1, 18–19 (2008).
18 See VILE, supra note 9, at 2.
19 See Bruce P. Frohnen, A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective, 20 TRANSNAT’L L. & CONTEMP. PROBS. 599, 605–06 (2012).
20 MARTIN LOUGHLIN, THE IDEA OF PUBLIC LAW 13–14 (2003).
21 See id. at 13.
22 THOMAS HOBBES, LEVIATHAN 126, 133, 135 (Oxford Univ. Press 1909) (1651).
23 See Jean-Jacques Rousseau, The Social Contract and Discourses, in EVERYMAN’S LIBRARY: PHILOSOPHY AND THEOLOGY 14–15 (Ernest Rhys ed., G. D. H. Cole trans., J.M. Dent & Sons Ltd. 1923)(1913) (describing the contract that citizens voluntarily form with society).
24 See JOHN DUNN, Contractualism, in THE HISTORY OF POLITICAL THEORY AND OTHER ESSAYS 39, 52, 55–56 (1996); RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND DEMOCRACY 141, 146–47, 149 (1999).

† Professor of Public Law and Jurisprudence, Shahid-Beheshti University, Tehran (formerly National University of Iran). The first version of this Article was read during a seminar at the Institute of Ismaili Studies, London, on April 09, 2015. The author would like to express his gratitude to the Institute for giving him the opportunity to share certain ideas with the respectable audience. He deeply appreciates the excellent questions the audience at the seminar put forward, and also would like to thank Dr. Mahnaz Bayat, Faezeh Ameri, Fatemeh Bakhshizadeh and Shirin Boroumand for their valuable comments and assistance in the completion of this Article.