In a 547-page judgment, the Supreme Court of India recently ruled that the Constitution of India protects a right of privacy. The decision will undoubtedly be extremely important in India, which, with a population of over 1.3 billion, is not only the world’s largest democracy but by one measure includes roughly one-third of all people living in democracies. Among its many substantial implications, the ruling declares that sexual orientation discrimination violates the Indian Constitution, thereby all but overruling a disturbing contrary decision of just a few years ago. It will likely lead to broader rights to sexual and reproductive freedom as well. Meanwhile, the case teaches important lessons for judges, lawyers, and citizens in other constitutional democracies, including the United States.
The Procedural Context
Unlike the Supreme Court of the United States and constitutional courts in many other countries, the Supreme Court of India does not usually sit en banc, that is to say, as a whole. The Indian Supreme Court currently has twenty-five members and several vacancies. In most cases, the justices sit in panels of two or three. With different justices deciding different cases, conflicting lines of precedent can arise. When that happens, the chief justice can empanel a larger body to resolve the conflict. The Privacy Case arose out of a referral from a panel that was unsure of what body of precedent to apply in a case challenging a government program that aims at creating a “database of personal identity and biometric information covering every Indian.” The chief justice designated nine justices to decide the Privacy Case. Their decision will apply in a wide variety of contexts.
In one procedural respect, the United States is an outlier, while India is similar to most other constitutional democracies. In the United States, federal courts (and most state courts) decide only concrete disputes in which the parties have a clear stake. True, our courts make pronouncements that serve as precedents in other cases, but, at least as an official matter, they can only resolve what the US Constitution’s Article III calls “cases” and “controversies.” By contrast, the Indian Supreme Court has broad authority to pass judgment on important constitutional questions, even if the person bringing the issue before the Court has no individual stake.
The Privacy Case initially arose out of the challenge to the database and associated cards for individuals, but once the nine-justice bench was constituted, its mission was to decide an abstract question that would go well beyond any particular case or even category of cases. In that sense, it was a form of what is sometimes called “abstract” adjudication.
The Core Issue
In a landmark 1819 ruling of the US Supreme Court, Chief Justice John Marshall explained that implied powers exist under the Constitution because, in the nature of constitutions, they only set out a basic framework. “A Constitution,” Marshall wrote, “to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”
Marshall may have been right when he wrote those words, but in the years since, constitution writers have treated them less as a caution than as an invitation. The Indian Constitution is nothing like the terse US Constitution. Counting schedules and appendices, it spans over 400 pages. Its Table of Contents alone is roughly the same length as the entire US Constitution.
That prolixity includes rights provisions. A contrast with the US Constitution is instructive. Our Fourteenth Amendment forbids states from denying to any person “the equal protection of the laws” but does not specify what such protection consists in. The Indian Constitution also contains a “right to equality,” but it is helpfully supplemented by a provision forbidding discrimination based on “religion, race, caste, sex, [or] place of birth.” American jurists debate whether the Equal Protection Clause permits race-based affirmative action, a question that the text does not answer. By contrast, the Indian Constitution specifically allows for affirmative action for members of disadvantaged tribes, castes, and classes.
In light of the detail in the Indian Constitution, one might conclude that the omission of an express right of privacy could not have been an oversight. And indeed, prior to the recent ruling, Indian Supreme Court jurisprudence drew just that inference. A prior ruling said that because the Constitution does not contain an express right of privacy, no such right could be inferred. The Privacy Case rejected that reasoning.
To greatly oversimplify a book-length opinion, the Court took a synthetic view of constitutional rights and values. Relying on the Preamble, other provisions of the Indian Constitution, and prior precedents, the Court concluded that the Indian Constitution simultaneously recognizes that human beings are social and that the individual is nonetheless the basic unit of society. Privacy, the Court said, was entailed by constitutional values that do find express recognition in the Constitution, especially justice, liberty, equality, dignity, and fraternity.
The inclusion of justice, equality, and fraternity in that catalogue is significant, in light of modern India’s history. For most of the time since its founding in 1947, the state of India was politically democratic (excepting the nearly two-year period of emergency rule in the mid-1970s) with a planned economy. The latter reflected anti-colonial commitments of modern India’s founders, but began to give way to free-market capitalism in the early 1990s. It is tempting to read the Privacy Case as following the path of market reform—as a triumph of liberal individualism over social solidarity. However, the opinion makes clear that it is nothing of the sort. Privacy, as envisioned by the Indian Supreme Court, is a right of social beings. The Court casts its lot with the late legal philosopher Ronald Dworkin, who famously argued that it is a mistake to view the enlightenment ideals of liberty and equality as in conflict; properly understood, Dworkin contended, the ideals complement one another.
Principles of Interpretation
The Privacy Case is also notable for the principles it uses to approach the interpretive task. In the United States, there is much talk by conservative judges and justices about the role of the original meaning of constitutional provisions. The Indian Supreme Court rejects originalism. The Court writes:
India’s brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. Nor can judges foresee every challenge and contingency which may arise in the future. . . . Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance.
Among the changes that the Indian Supreme Court found to be significant is the growth of information technology. India has been a major participant in innovation in information technology, and the Court considered the possibility that, in light of the importance of information flow to a modern economy, privacy is outdated. The Court rejected that claim. The ubiquity of information, the Court thought, heightens the need for privacy protection.
The Indian Supreme Court sought guidance in international and comparative sources. For example, it pointed to express protection for the right of privacy in Article 12 of the Universal Declaration of Human Rights. The Court also examined the privacy jurisprudence of courts in the United Kingdom, the United States, South Africa, Canada, and the European Union.
Perhaps most arrestingly to an American academic, the Court grappled seriously with the academic literature—much of it (including one of my works) written by American legal scholars. In an era when US judges and justices decry legal scholarship as useless esoterica, it is heartening to see a court take our ideas seriously.
Whether the Indian Supreme Court’s opinion in the Privacy Case proves influential in the United States remains to be seen. Conservative judges and justices in this country tend to be wary of foreign materials, which they regard as mere cover for their liberal colleagues to impose their own values.
That attitude is misguided and unfortunate. As the Privacy Case itself illustrates, it is possible to learn from other legal systems without blindly following them. Moreover, comparative law guards against the human tendency to confuse the familiar with the necessary. We may think that our way of doing things is natural or even the only way. Seeing that a sister legal system responds dissimilarly yet successfully to some of the common challenges we face should open up a world of possibilities.
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