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The Supreme Court’s Right to Privacy Judgment – IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues

The Puttaswamy case came to Court because the Indian Constitution does not have a textually guaranteed right to privacy. Each of the six judgments spent considerable time establishing why, despite the constitutional text, privacy was a fundamental right. Many different arguments were advanced, and in the first two posts in the series, we discussed one of them: privacy was a fundamental right because without it, effective enjoyment of textually guaranteed rights such as the freedom of speech, the freedom of association, personal liberty, and so on, was simply impossible. Consequently, as paragraph 3 of the operative order stated, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” 

Living Constitutionalism

There were, however, other arguments as well. In all of the judgments, for example, we find references to how the constitutional meaning is not fixed or static at its point of origin, but must evolve with time; or, in other words, the Constitution is a “living document.” This argument was fleshed out in the greatest detail in Justice Kaul’s opinion, in a full section titled “The Constitution of India – A Living Document” (paras 23 – 49). Justice Kaul argued that the Constitution must be continuously updated to keep up with the times, and that it has certain “core values” that “manifest themselves differently in different ages, situations and conditions.” (para 40) The values themselves were derived from the Preamble, with dignity given pride of place.

The arguments against the living constitutionalism approach to constitutional interpretation are well-known, and need not be rehearsed here. What is disappointing about Puttaswamy is that (with a couple of exceptions that I shall come to), the judges did not address them at all. In one paragraph, Justice Kaul pointed out that the framers themselves were aware of changing realities, and consequently, faithfulness towards their “original intent” would itself require a dynamic and innovative approach to constitutional interpretation (para 31). That is not enough, however: one cannot simply argue that the Constitution should be interpreted dynamically, and stop at that. There must be standards that guide this organic interpretation, standards that go beyond invocations judicial wisdom. The Preamble itself, with its broad principles, underdetermines this enquiry. From time to time, the judgments referred to the freedom struggle (paragraphs 111 and 115, Chandrachud J; paragraph 18, Chelameswar J), but once again, there was little discussion on what, precisely, was the connection between the freedom movement, and the interpretation of the Constitution.

The problem is quite simply this: we may agree that the Constitution lives and grows, but in which direction ought it to grow, at what pace? How do we know what is “organic growth”? To simply say that the Constitution adapts and evolves with the times, and that judges are charged with updating it, is not enough (what if, for example, the change in social attitudes is towards the contraction of rights instead of their expansion?). There needs to be an interpretive approach that is grounded in the constitutional text, its structure, its history, and the social and political circumstances in which it was drafted, and the broad problems that it was designed to respond to.

It is perhaps in Chelameswar J.’s separate opinion that we do see an effort towards developing such a theory. In Footnote 19 of his opinion, during his discussion of the Constitution’s dark matter, he observed that:

“This court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the Constitutional text by reference to Constitutional values (liberal democratic ideals which form the bedrock on which our text sits); a mix of cultural, social, political and historical ethos which surround our Constitutional text; a structuralist technique typified by looking at the structural divisions of power within the Constitution and interpreting it as an integrated whole etc. This court need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution.”

In the same footnote, he then pointed out:

“The important criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary exercise of judicial power. The living constitutionalist approach in my view is preferable despite these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to the living constitutionalist approach.”

This is crucial, because it acknowledges that no credible interpretation of the Constitution can afford to ignore its text. Issues of structure, purpose, political ethos, and framework values must supplement the text, but they cannot supplant it (readers will recognise a broad similarity with Dworkin’s approach of “law as integrity” here). Judicial discretion is, of course, a central part of the interpretive exercise, but that discretion must be shaped by the constitutional text, structure, history, and overall purposes. It cannot simply reflect a judge’s view of how the Constitution is to be updated with the changing times, within the over-broad framework of the Preamble.

Natural Law

Both the plurality and Justice Nariman expressly overruled the notorious judgment of the Supreme Court in ADM Jabalpur vs Shivakant Shukla. Recall that in ADM Jabalpur, the Court had upheld the suspension of habeas corpus during a proclamation of Emergency, on the basis – among other things – that the source of rights was confined to the four corners of the Constitution itself – and given that the Constitution itself authorised their suspension in an Emergency, there was no basis on which detainees could move Court and claim any rights. In Puttaswamy, a majority overruled ADM Jabalpur on this specific point, and held that there were certain rights that could be called “natural rights”, inhering in people simply by virtue of their being human. The Constitution did not create such rights, but only recognised them.

In a full section dedicated to this argument (Section G), Chandrachud J, writing for the plurality, observed that “privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.” (para 40)

Variants of this statement were repeated at various points in his judgment, and in paragraph 119, ADM Jabalpur was overruled on this ground.

In his separate opinion, Justice Bobde noted that “privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.” (para 12) Justice Nariman observed that “we do not find any conflict between the right to life and the right to personal liberty. Both rights are natural and inalienable rights of every human being and are required in order to develop his/her personality to the fullest.” (para 45) He also overruled ADM Jabalpur on this point (paras 90 and 91). Justice Sapre held that “in my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.” (para 25) And Justice Kaul noted that “primal natural right which is only being recognized as a fundamental right falling in part III of the Constitution of India.” (para 76)

But if privacy is a “natural right” whose existence is only recognised by the Constitution, then two questions arise, neither of which (in my view) were answered satisfactorily by the bench. The first is: how do you determine the content of natural rights? In the history of natural law theorising, at one point, the doctrines of the church were believed to be the source of natural rights; at another point, human reason replaced canon law; Justice Bobde referred to “universal moral agreement”; and Justice Nariman invoked international law (in particular, the Universal Declaration of Human Rights). In my view, however, if the judgments were going to take the significant step of overruling ADM Jabalpur, and unequivocally stating that the source of (at least a few) fundamental rights is natural law, then it was incumbent upon them to develop at least the basics of an interpretive approach towards identifying the content of natural law. We face here the same problem as we did with the living constitutionalism approach: ultimately, without clear standards, there is too much power in the hands of the judges. Today, liberal judges may seek to expand rights by incorporating a “natural right” to privacy, that predates and pre-exists the Constitution; but what is to stop a judge, in the future, from invoking his own conception of natural rights (or, for that matter, natural duties) to contract liberty?

Interestingly, Justice Chelameswar seemed to recognise the problem, because throughout his judgment, there is not one reference to “natural rights”. This was surely not an unintentional omission. And indeed, in para 19, he noted that:

“To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of any of the Articles of Part-III, it is necessary to understand what “fundamental right” and the “right of privacy” mean conceptually. Rights arise out of custom, contract or legislation, including a written Constitution.”

He then went on to observe that:

“All such Constitutions apart from containing provisions for administration of the State, contain provisions specifying or identifying certain rights of citizens and even some of the rights of non-citizens (both the classes of persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights came to be described as “basic”, “primordial”, “inalienable” or “fundamental” rights. Such rights are a protective wall against State’s power to destroy the liberty of the SUBJECTS.” (para 20)

This is a crucial paragraph, because while Chelameswar J used the same language as his brother judges had used (“primordial” and “inalienable”), he consciously used it not to signify natural rights that pre-existed the Constitution, but rights that, after Constitutions had been created “came to be described as” primordial and inalienable. And again:

Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. (para 40)

Consequently, on the issue of whether natural rights, which pre-date the Constitution, are the sources of fundamental rights, the Court was not unanimous; rather, it split 8 – 1, with Chelameswar J the lone dissent. This, however, raises another question: what if, tomorrow, a fresh constitutional convention was called, the Constitution replaced, and a new Constitution brought in to substitute it? What if that Constitution (for example) expressly stated that privacy was not a fundamental right, or expressly espoused an hierarchical, anti-egalitarian ordering of society? Would the natural rights continue to exist and be enforced by the Court, notwithstanding the terms of the new Constitution? On the majority’s view, the answer would have to be yes.

Perhaps, though, if things came to that, we’d all have more pressing worries.


Puttaswamy advanced two important theoretical propositions about constitutional law. The first was the doctrine of living constitutionalism, and the second was the endorsement of natural rights. I have my reservations about both propositions, but in this essay, my point has been that they needed a substantially stronger defence than what we find in Puttaswamy. That task, perhaps, is now left to future benches.


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A Question of Sources

In a recent judgment dealing with the Domestic Violence Act, the Supreme Court, while dealing with the concept of stridhan, observed:

The next issue that arises for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as follows:- “First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name of saudayika stridhan, constitute a woman’s absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress.””

Gooroodas Banerjee was a 19th century jurist and judge of the Calcutta High Court. In the same book that the Supreme Court chose to quote with approval, he also wrote:

A woman is not regarded in Hindu law as an active party in marriage. In fact, she is hardly regarded as a party at all. Marriage is viewed as a gift of the bridge by her father or other guardian to the bridegroom: the bride, therefore, is regarded more as the subject of the gift than as a party to the transaction.” [pp. 45 – 46]

When dealing with a subject such as the law of marriage, it is not immediately obvious that an author’s views on one subject can be neatly segregated from his views on another (especially when both sets of views flow out of a particular conception of the nature of the marital relationship). There ought to be at least some explanation for why an author is cited as an authority on a subject, when at least a substantial part of his views are clearly out of sync with the founding principles of the Constitution as well as codified Hindu law (and, as Sudhir Chandra points out in Enslaved Daughters, p. 10, Goorodas Bannerjee’s views on marriage were contested even at the time).

The dangers of assuming expertise on a subject without even a cursory investigation, especially when the source is colonial, is neatly illustrated in the next paragraph of the same judgment. The Court notes:

“The said passage, be it noted, has been quoted Pratibha Rani v. Suraj Kumar and Another10. In the said case, the majority referred to the stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s “Treatise on Hindu Law”. The Court after analyzing the classical texts opined that:- ”It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes — she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband.”

Here, the Court unthinkingly uses the term “coverture” as a referent of the marital relationship. As a matter of fact, “coverture” was a specific legal term referring to the subsumption of a woman’s legal status within that of her husband, upon marriage. Under 19th century common law, a woman lost her legal status upon marriage, and with it, the ability to hold property, to sue, etc. The system of coverture was overthrown after long suffragist struggles, and in India, of course, it is starkly at odds with the Constitutional scheme and the post-Independence codification of Hindu law.

In Pratibha Rani’s Case, the case referred to in the quotation, the Supreme Court uses the word “coverture” no less than eleven times (counting quotations). Gooroodas Bannerjee is quoted extensively, and throughout the judgment, the Court refers to the woman’s right to stridhan during “coverture”. In Krishna Bhattarjee (the judgment with which I began this post), the Court endorses Pratibha Rani, leading to an extremely odd situation where, in 2015, the Indian Supreme Court is using the term “coverture” to describe the marital relationship, and quoting as its source books authored during the colonial era.

All this indicates that there needs to be significantly greater attention paid to the question of sources. There is a volume of scholarship that deals with the impact of colonialism upon the legal system (see, e.g., Sudhir Chandra, Enslaved Daughters; Amrita Shodhan, A Question of Community; Anupama Rao, Caste Question, and many many more), and especially, about the manner in which “authoritative interpretations” of local laws came to be established. In view of how such interpretations were nested in, and drew from, a deeply unequal relationship, continuing to defer to colonial “authorities” in the post-Constitutional age without any further justification, is deeply problematic. There is no judgment to my knowledge, however, that has drawn upon historical scholarship to seriously ask questions about what sources ought to be taken as “authoritative” and, in particular, how Constitutional principles ought to guide such enquiries, given that the assumptions from which these authors operated were entirely at odds with the Constitution.

Hopefully, at some point, the Court will come around to asking these questions.


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Transformative and Conservative Interpretation: Untidy Corollaries

(To Kunal Ambasta, fellow traveler on constitutional roads, fine human being and good friend.) 

In the last post, we explored the possibility of a Constitution serving two distinct purposes – conservative and transformative. Recall that a Constitution can be conservative in that it seeks to preserve, codify and entrench an existing set of values and institutions; or it could be transformative in that it seeks to replace them. We noted that large parts of the American constitution are examples par excellence of conservative provisions, whereas our own Articles 15 (non-discrimination) and 17 (abolition of untouchability) are paradigm cases of transformative provisions.

One enquiry was simplified by the fact that in our model, the American constitution, the conservative/transformative distinction, in large part tracked a more familiar distinction between individual rights and structures of governance. Yet things need not always be that simple (and the American constitution, after its reconstruction amendments granting equal citizenship to blacks, is certainly not that simple). There is no reason why, within the same set of rights, some can be transformative, and some conservative. Here is an example: if Ranjit Udeshi was right in upholding the ban on Lady Chatterley’s Lover (and I do not think it was), its only justification would be that Article 19(2)’s morality clause sought to conserve and codify existing dominant conceptions of “public morality“. Here you have a classic case of transformative and conservative elements blending not just within the same bill of rights, but within the same provision: Article 19(1)(a) is transformative in the sense that it grants citizens the right to free speech that they didn’t have under the Empire or previously; while at the same time, it restricts the scope of that right by entrenching an existing value system into law.

What, then, does this distinction further entail? Here is one suggestion: many of us, when we first enter the labyrinth of constitutional law, choose as our own Ariadne’s ball of thread, a particular interpretive methodology to help us navigate. We then defend our chosen method (or sometimes, combination of methods) against all others by invoking various arguments grounded in democracy, the separation of powers, or just plain common sense. Originalism suffers from the dead hand problem, for instance; “living tree” doctrines, on the other hand, would seem to vest too much power in unelected judges to substitute their own moral preferences for the majority’s; textualism makes a mockery of how language is used by refusing to take into account the rich surrounding context, both within the document and historical; structural analysis is unfaithful to the framers by imposing coherence and unity upon what was actually a patchwork quilt of bargain and compromise; and so on. But if Constitutions can themselves serve at least two very different – indeed, opposite – purposes, then perhaps there is no one correct method – or combination of methods – of interpretation. Perhaps the right way of interpreting a constitutional provision depends upon whether it is conservative or transformative, and to what extent.

Here is one trivial way in which this is true: a transformative provision obviously cannot be interpreted by invoking traditional values. If the point of inserting a free speech clause into the Constitution was transformative in that it meant to ensure that a dominant class would no longer be able to silence opinions that it perceived to be immoral or harmful, then it makes no sense to read 19(2)’s morality clause as “public morality” – because all that does is to replace the British with whatever class whose stated morals the Court decides to count as “public“.

There are also, however, subtler issues at hand. One dominant form of constitutional interpretation, championed by Justice Antonin Scalia at the US Supreme Court, is that of “original meaning” (the term is self-explanatory). Original meaning, I would submit, is a powerful interpretive method when we’re dealing with conservative constitutional provisions: because the objective is to preserve an existing set of values, what words meant at the time the provision was drafted would, indeed, be the best indicator of what content the values themselves had, and were meant to continue to have. On the other hand, originalism is inadequate to deal with transformative provisions, for the following reasons: first, a simple issue of language. While one is trying to transform a set of values, one’s tools to do that remain only words, and words not only carry with them the accumulated baggage of decades, sometimes even centuries, of consistent usage, but are also often implicit carriers of value. So it is quite possible – indeed, even likely – that the full transformative force of a concept will simply fail to be captured by extant patterns of language (“equality” being a classic example). 

Secondly, transformative provisions raise an issue of consistency. Here is an example: the framers wanted to transform a society that discriminated in all sorts of invidious and destructive ways by expressly writing a non-discrimination principle into law; they omitted sexual orientation from that list because they believed, on the basis of extant medical evidence, that homosexuality was a disease. That claim has been comprehensively debunked by medical research. So now, in 2013, what interpretation of Article 15 would be more faithful to the framers’ transformative vision? What interpretation would ensure that the Article 15 remained principled and consistent with itself? Naturally, one that read sexual orientation into Article 15 (as a parallel analogy: suppose the contract law of State X decided to shift from oral contracts to “written and printed contracts”, on the ground that it was easier to prove tangible agreements; does it make any sense to deny contractual protection to one done on microfilm?) . Note, however, that such a problem would never arise if the provision was simply conservative, because there you’re taking a set of values as given, without worrying about whether they are consistent with each other.

And lastly, consider a more speculative argument: a transformative constitutional provision is, among other things, a rebuke to illusions of infallibility; it is an admission that a particular generation got it wrong – wrong either in its identification of values, or in its attempt to entrench that value set against change by future generations; so wrong, in fact, that not just a modification, but a transformation is in order. It would be odd, then, that a provision predicated upon fallibility would arrogate to itself assumptions about its own infallibility. A transformative constitution – or rather, transformative constitutional provisions therefore, by virtue of their character, their origins and their philosophy, both invite and demand a dynamic, responsive and flexible interpretation – not a rigid, static and originalist one.

But even this isn’t the whole story, because as we discussed before, transformative constitutions in colonial contexts present a considerably more complex picture because often, alongside transforming values from the colonial to the post-colonial, they seek to conserve a perceived vision of the pre-colonial, an idea of the nation before it was conquered. At this point, I freely confess that my own grip on what interpretive strategy fits best begins to be cast off its moorings; what I would like to argue definitively, though, is that our interpretive approach to the Indian Constitution (beyond merely the question of whether to invoke traditional values in interpreting it) depends upon a detailed analysis questioning which parts of it are conservative, which parts transformative, and in what way. 

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Filed under Constitutional interpretation, Non-discrimination, Post-colonialism, Sexuality