India Archives - Regent University School of Law https://jgjpp.regent.edu/tag/india/ Journal of Global Justice and Public Policy Fri, 07 Feb 2025 22:56:29 +0000 en-US hourly 1 https://wordpress.org/?v=6.8 https://jgjpp.regent.edu/wp-content/uploads/2022/02/cropped-Regent-Favicon-32x32.png India Archives - Regent University School of Law https://jgjpp.regent.edu/tag/india/ 32 32 THE USE OF AMERICAN DUE PROCESS AND PRIVACY FRAMEWORKS BY THE INDIAN SUPREME COURT IN PRIVACY CASES DURING THE PRE-DUE PROCESS ERA https://jgjpp.regent.edu/the-use-of-american-due-process-and-privacy-frameworks-by-the-indian-supreme-court-in-privacy-cases-during-the-pre-due-process-era/?utm_source=rss&utm_medium=rss&utm_campaign=the-use-of-american-due-process-and-privacy-frameworks-by-the-indian-supreme-court-in-privacy-cases-during-the-pre-due-process-era Fri, 07 Feb 2025 22:56:29 +0000 https://jgjpp.regent.edu/?p=1153 The post THE USE OF AMERICAN DUE PROCESS AND PRIVACY FRAMEWORKS BY THE INDIAN SUPREME COURT IN PRIVACY CASES DURING THE PRE-DUE PROCESS ERA appeared first on Regent University School of Law.

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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

† 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.

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Erica Harrigan | 1 Regent J. Glob. Just. & Pub. Pol. 59 (2014)

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INTRODUCTION

Let girls be born elsewhere, let boys take birth here. Son is wealth. Son is a blessing. The son will be the father’s strength in old age. The father will go to heaven if the son lights his funeral pyre. It is the son who will rescue the father from hell.[1]

This Indian saying is indicative of a pervasive societal preference for sons. In India, the desire for sons is so strong that half a million girls per year are killed via sex selective abortion in the hopes that a future pregnancy will produce a son.[2] Prenatal medical technology like the ultrasound is so widely available and cheap that even the poorest of Indian families can determine the sex of a fetus and decide if they want to allow it to live.[3] This has resulted in an increasingly skewed sex ratio that has dangerous consequences for India’s future.[4] Despite efforts to curb these statistics, the latest Indian census in 2011 revealed that the sex ratio of the number of girls born per 1000 boys had dropped yet again from past censuses.[5] A natural sex ratio at birth is an average of 105 boys born for every 100 girls.[6] In 1981, the ratio in India was 962 girls for every 1000 boys.[7] In 1991, that dropped to 945 and in 2001, continued its descent to 927.[8] In 2011, the ratio dropped to an all-time low of 914.[9]

Traditionally, Indian culture has valued sons and systematically discriminated against girls.[10] Infanticide of girl children has been documented for centuries, but the introduction of ultrasound technology in India opened a floodgate of prenatal sex determination followed by sex selective abortions.[11] To combat the dropping ratio of girls, the Indian Parliament enacted the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT) in 1994, which criminalized sex determination and sex selective abortion.[12] Sadly, however, society and medical professionals alike generally ignored the PNDT Act.[13]

In 2001, the Indian Supreme Court responded to a 1998 report regarding the lack of enforcement by issuing directives for more vigorous enforcement.[14] Since those issuances, awareness and advocacy for the rights of the girl child have slightly increased, but as evidenced by the continuous drop in sex ratios, the current course of action is not effective.[15] In order for there to be a significant drop in sex selective abortions and an evening out in the sex ratio, the medical community must take responsibility for its role in sex determination and abortion.[16] The Indian Medical Association (IMA) and the Medical Council of India (MCI) must enforce the PNDT Act and the MCI’s Code of Medical Ethics, so that doctors who have direct control of these technologies are held responsible for their actions.[17]

This Note discusses the historical discrimination against girl children in India, societal motivations for sex determination, and the effects of the introduction of prenatal medical technology as well as the projected consequences of sex selective abortion. This Note then discusses the current state of the law in India and the PNDT Act. Finally, this Note analyzes the role of the medical community in sex determination and sex selective abortion and emphasizes the necessity of enforcing the Code of Medical Ethics in a way that is self-regulating.

BACKGROUND

A. Historical Discrimination Against Girl Children

    1. Causes of Female Discrimination Against Girl Children

Dominant patriarchal family structures in Asia have traditionally placed great value on producing a male heir.[18] “Property rights [are] passed down hereditarily from father to son.”[19] The son not only “carr[ies] on the family name and caste,” but also “care[s] for his parents in their old age,” while a daughter is considered “part of her in-laws’ family” once she marries.[20] Because a son receives the family inheritance, he is perceived as a critical source of stability and wealth and as such is a better “investment” than a daughter.[21] In India, a son’s birth raises the social and economic standing of a family, while the birth of a daughter does not.

Not only are girls perceived as not bringing money into a family, but they are also perceived as taking money away from the family in the form of a dowry.[22] An Indian proverb demonstrates the prevailing cultural bias against daughters: “Grooming a girl is like watering a neighbor’s garden.”[23] When a daughter marries, she leaves her family and spends the rest of her life working for her in-laws’ family.[24] In addition, the custom of dowry in India demands that the family of the bride pay the family of the groom.[25] Though this custom has deep roots in Hindu law and historically was voluntary, the current practice is not voluntary and requires a significant amount of money and goods whether or not the bride’s family has the financial ability to pay.[26] The demanded dowry can amount to up to five years’ income for some families because it is calculated to be proportionate to the groom’s potential earning capacity.[27] Despite the Dowry Prohibition Act that was passed in 1961 outlawing dowry payments, the practice continues.[28] If a groom’s family is not satisfied with the dowry payment, there can be serious repercussions for the bride, including abuse and even death.[29] These deaths are often called “bride burning”[30] in reference to the “accidental” kitchen fires that kill these young brides.[31] Since 1947, when India became independent, 72,000 brides “between the ages of fifteen and twenty have been burned to death.”[32] Dowry is only one example of a culture that devalues girls to the extent that it is seen as merciful to selectively abort or kill them to prevent them from experiencing bride burning or other discrimination.[33]

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  1. Discrimination Against Women: Millions of Girls Aborted in Recent Years in
    India    , BUDDHIST BROADCASTING NETWORK (Oct. 16, 2013), http://www.bbncommunity.com/discrimination-women-millions-girls-aborted-recent-years-india/ (quoting Taslima Nasrin, “It’s a Girl!” “Kill Her”, FREETHOUGHTBLOGS.COM (Apr. 30, 2012), http://freethoughtblogs.com/taslima/2012/04/30/its-a-girl-kill-her/). ↩︎
  2. Kristi Lemoine & John Tanagho, Note, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the Indian Supreme Court on the Implementation and Enforcement of the PNDT Act, 15 U. MIAMI INT’L & COMP. L. REV . 203, 204–05 (2007). ↩︎
  3. Id. at 205. ↩︎
  4. Id. ↩︎
  5. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM ’R, INDIA, Final Population Totals, CENSUS INFO INDIA 2011, http://censusindia.gov.in/2011census/censusinfodashboard/index.html (last visited Oct. 22, 2014); see also Sex Ratio in Indian Population – 2011, MED INDIA,
    http://www.medindia.net/health_statistics/general/sex-ratio-in-india-2011.asp (last visited
    Oct. 22, 2014) [hereinafter Sex Ratio in Indian Population – 2011]. ↩︎
  6. MARA HVISTENDAHL, UNNATURAL SELECTION: CHOOSING BOYS OVER GIRLS, AND THE CONSEQUENCES OF A WORLD FULL OF MEN xiii (2011). ↩︎
  7. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM’R, INDIA, Gender Composition, CENSUS OF INDIA, http://censusindia.gov.in/Census_And_You/gender_composition.aspx (last visited Oct. 22, 2014). ↩︎
  8. Id. ↩︎
  9. Sex Ratio in Indian Population – 2011, supra note 5. ↩︎
  10. See Lemoine & Tanagho, supra note 2, at 218. ↩︎
  11. See Vineet Chander, Note, “It’s (Still) a Boy . . . “: Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India’s Struggle to Stamp Out Female Feticide, 36 GEO. WASH. INT’L L. REV. 453, 453, 457 (2004). ↩︎
  12. Lemoine & Tanagho, supra note 2, at 206. ↩︎
  13. Id. ↩︎
  14. Id. ↩︎
  15. Id. at 206–07; Sex Ratio in Indian Population – 2011, supra note 5. ↩︎
  16. Chander, supra note 11, at 466. ↩︎
  17. Id. ↩︎
  18. Monica Sharma, Twenty-First Century Pink or Blue: How Sex Selection Technology Facilitates Gendercide and What We Can Do About It, 46 FAM. CT. REV. 198, 200 (2008). ↩︎
  19. Chander, supra note 11, at 455. ↩︎
  20. Id. ↩︎
  21. Sharma, supra note 18, at 200–01. ↩︎
  22. Sharma, supra note 18, at 200–01. ↩︎
  23. Id. at 200. ↩︎
  24. Alison Wood Manhoff, Note, Banned and Enforced: The Immediate Answer to a Problem Without an Immediate Solution—How India Can Prevent Another Generation of “Missing Girls,” 38 VAND. J. TRANSNAT’L. L. 889, 899 (2005). ↩︎
  25. Id. at 900. ↩︎
  26. Id. ↩︎
  27. Andrea Krugman, Note, Being Female Can Be Fatal: An Examination of India’s Ban on Pre-Natal Gender Testing, 6 CARDOZO J. INT’L & COMP. L. 215, 224 (1998). ↩︎
  28. Manhoff, supra note 25, at 901. ↩︎
  29. Id. ↩︎
  30. Krugman, supra note 28, at 224. ↩︎
  31. Dowery Deaths and Bride Burnings, VDAY, http://www.vday.org/bride+death#.VAzmz2PCevk (last visited Oct. 30, 2014). ↩︎
  32. Krugman, supra note 28, at 224. ↩︎
  33. See Manhoff, supra note 25, at 905; see also Varsha Chitnis & Danaya Wright,
    The Legacy of Colonialism: Law and Women’s Rights in India, 64 WASH. & LEE L. REV.
    1315, 1339 (2007). ↩︎

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