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11/13/2017

India's Supreme Court Discovers Right to Privacy
Mike Rappaport

Recently, I have been studying comparative constitutional law.  It is a fascinating area, providing real world examples for the issues that constitutional theory explores.  What is more, the practices of other constitutional judiciaries are often unexpected.  I often find myself saying, “do they really do that?”

One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.  The Supreme Court of India is one of the most aggressive high courts in the world.  Perhaps its most aggressive action has been a series of cases where the court held that the basic structure of the Indian Constitution could not be amended, even though the constitution did not textually provide for that and in fact seemed to suggest otherwise.

The recent case finding a privacy right, Justice K S Puttaswamy V. Union Of India, is remarkable in many ways.  The opinion is over 500 pages long!  And it engages in a discussion of various issues one would not expect.

To begin with the decision addresses originalism.  It has a section entitled “Constituent Assembly and Privacy: Limits of Originalist Interpretation,” that purports to address the originalist objections.

In another section, the court explored philosophical and legal theory aspects of privacy.  Thus, it discusses the views in separate subsections of Judith Jarvis Thompson, Richard Posner, Robert Bork, and Catherine MacKinnon.  It is interesting that while the U.S. Supreme Court largely ignores foreign court decisions and foreign legal scholars, the Indian Supreme Court devotes so much space to these matters.

A Supreme Court decision in the United States would not do this.  One does not see long discussions of why originalism does not apply in the U.S.  And one certainly does not see significant discussions of the views of legal theorists.

The decision also appeared to overrule two prior decisions that refused to recognize a privacy right.  (Here, of course, the Indian Supreme Court does not represent a radical break with the practice of the U.S. Supreme Court.)

As is characteristic of the decisions of the aggressive high courts throughout the world, the announced right is not absolute or even determinate.  The privacy right “will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.”  While this limitation might seem to lessen the effect of the court’s decision, it nonetheless allows the court more power to determine the content of the right, at its discretion.

Decisions like these are sobering.  It is almost enough to make one appreciate Justices Kennedy or Sotomayor.