- Abstract
The world is now becoming one global market due to the fast emerging technologies, dissolving national trade boundaries. In this era of globalisation and industrialisation, the social, economic and legal problems faced by many nations are of a similar kind. The judiciary of different nations tries in their own possible way to examine the cases at hand and develop principles, which might be helpful for solving similar issues in the future. In this paper, the author shall highlight the importance of comparative research for the development of comparative public laws, with a special focus to comparative constitutional law. The topic will be deal with the Indian scenario of the issue. The Constitution of any nation, is by far the most important public law document existing in the territory, which upholds the rights and duties of every individual related to that nation in some respect. In current times when the society is fast changing, we often see the judiciary playing a pivotal role in the development and protection of the rights and duties enshrined under the public law documents. Thus, in the paper, the author attempts to highlight the contribution of the Indian judiciary in upholding the fundamental rights enshrined under Part III of the Indian Constitution, with the help of two landmark judgments passed in the recent history of Indian judiciary. While dealing with both the judgements, the author shall highlight and discuss the comparative research brought about by the judiciary to reach to an appropriate decision. Cases of United Kingdom and United States of America have also been discussed in that regard, which complements the judgment given by the Indian judiciary in respect of similar legal issues which existed in those territories. Further, the author shall also briefly discuss the benefits of such comparative research in the modern times and the existing ideologies behind comparative public laws.
Key Words: Comparative public law, Comparative Constitutional Law, Constitutional morality, Indian judiciary, landmark judgements.
Introduction:
Comparative public law is the comparative study of public laws of different jurisdictions. In this era of globalisation, we have started to perceive every aspect of our lives in the global context. With each passing day, crimes and offences have also crossed boundaries. The world is now a global community and trade is now conducted in the global market. With the context of globalisation and commercialisation coming into predominance, the main focus of the judiciary has been on the comparative study of legal systems in different parts of the world to solve the various issues that come up to the Courts. It is often considered that all the societies of the world have more or less the same kind of issues plaguing the public and hence a comparative study of such legal systems and how they tackle the issue shall prove helpful in dealing with the issues of our own society.
‘Public laws’ does not only include constitutional law, but also administrative laws, criminal laws and all the existing procedural laws. Every set of legal principles in a jurisdiction is developed over the years, through social, political, cultural and economic changes through which the society passes. The historical development of any society plays a very important role in tracing back the public laws of that area, how they came into being, regarding what issues and how they were dealt with. Therefore, having knowledge of the historical background of a few major legal systems in the world, aids in comparing our legal systems to such other legal systemsand knowing about the differences, which exist in the different societies.
In this paper, the focus shall be entirely on the study of comparative constitutional laws with a prior discussion on the ideologies behind comparative public laws. In the light of comparative constitutional law, the paper shall elaborately discusstwo landmark judgements passed by the Supreme Court of India in the recent years, which highlight the role of the judiciary in considering comparative law as a necessary tool for the development of Indian public laws.
- Ideologies of Comparative Public Laws:
Primarily, comparative public laws depend on two ideologies. One set of scholars follow the concept of constitutional nationalism and the other set of scholars base their arguments in favour of constitutional cosmopolitanism.[1] As per the ideology of constitutional nationalism, the constitution and laws of a particular territory develop from the political, social and historical background of that territory.Therefore, the laws in that territory emerges from and embodies the circumstances and issues or challenges of that area. The constitution of a territory is interpreted to “clarify the way they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, [and] how they want to deal with their history.”[2] So, people who follow the ideology of nationalism, do not approve of the application of comparative principles of different legal systems around the world to deal with the issues in their society. They believe, each nation has different circumstances and thus, laws which solve issues of those nations, cannot be applied to solve the problems of our society. Comparison of public laws in such scenario would not be fruitful, as the problems faced are to each their own.
On the other hand, the ideology of constitutional cosmopolitanism is based on the notion that the different cultures of the world are all sub-parts of one big civilisation and thus, even though our legal systems and constitutions vary to some extent, the basic set of principles and rules governing human behaviour are the same. Thus, the study of comparative legal systems as per this ideology stands fruitful, as almost all the societies face the same kind of issues and challenges, and if any other society has already dealt with such issues as per their laws, we can then apply such principles or modify our laws in order to tackle the emerging issues. Often, in the interpretation of laws existing in one territory, the study of the foreign legal systems and reference to extratextual sources are required in order to decipher the intention of the legislators and also to get an understanding as to what shall be beneficial to the society ad what not.[3] The scholars of this ideology see the unity in midst of diversity.[4] It is believed, that there ought to be coherence in the constitutional systems of different jurisdictions. Thus, it is the duty of the judiciary to interpret the different constitutional systems and compare it with ours to benefit the public.
Significance of Comparative Law and Research:
One significance of comparing legal systems of different nations is that, by comparing we derive an idea of any points that our legislators might have missed on formulating a provision or if there is any ambiguous provision which needs clarification as to how it should be interpreted so as to serve the public good. Researching on the ways of how a particular nation has solved a particular public law issue, gives us an idea as to how we should approach a similar kind of issue. Another significance of comparing legal systems is that, we know what developments are needed to be brought about in our systems so as to suit our laws to the current needs of the society. In this era of globalisation, we are one global community, and the issues faced by one sub-community may be an issue of another sub-community in the near future.
Yet another significance of comparative public law, as a whole, is that, a nation can bring in the best practices from the laws around the world into our legal framework. That way, it will not only help in the development of our legal and administrative systemsbut also aid in our laws becoming more adaptive to the changing needs of the society.
Comparative study of laws also helps individuals, specifically lawyers in attaining an in-depth knowledge of the different jurisprudences and laws of the world. Itfurther helps them in assisting their clients in public law matters. Lawyers who deal with policy matters and are in interaction with the Government can directly approach the State for any effective change that needs to be brought in a law or give suggestions regarding any administrative matter. It also helps is knowing the differences and similarities which exist in the public laws of different jurisdictions, why they are different and on what conditions are the differences based. It helps us gain knowledge about the social, historical and political background on which the laws of countries are based and how their cultures are protected under such legal systems.
The study of comparative constitutional laws, though in its nascent stage, has gained popularity due to globalisation and industrialisation. Lawyers these days are more interested in knowing the different ways a similar issue has been treated as per the different laws pertaining to it. It is still a developing field of law.
Landmark Constitutional Law Cases in India:
In the recent years, the Indian Supreme Court has dealt with a few cases of utmost importance, which dealt with the issues of fundamental rights guaranteed under Part III of the Indian Constitution. In these cases, the judiciary has played an important role in comparing the laws of different nations on the same matter, mostly the United States and European Union and applied such foreign principles to the cases at hand to solve the issues. We shall discuss in this part two such landmark judgements and the various principles applied to public laws over the years.
Justice K S Puttaswamy v Union of India[5]– This case was regarding the constitutional right to privacy, whereby retired High Court judge, Justice Puttaswamy had challenged the action of the Union Government, which had proposed a scheme of uniform biometrics based identity card system (AADHAAR Card) for availing government services and benefits.[6]In this case, the nine-judge bench of the Supreme Court of India revisited its earlier judgements on the right to privacy namely, M P Sharma v Satish Chandra[7] and Kharak Singh v State of Uttar Pradesh[8]. In the case of M P Sharma v Satish Chandra, the Court had held that the power of search and seizure was an overriding power of the State and is necessary for maintaining national security. Also, the bench held that since the drafters of our Constitution did not include the right to privacy in Part III of the Constitution, making it a fundamental right would be a decision made in haste. Thus, the Court did not recognise privacy as a fundamental right under part III. Again in Kharak Singh v State of Uttar Pradesh, the Court had held that the right to privacy was not a guaranteed right under the Constitution of India. However, the Court held that Article 21 could be interpreted as a provision containing the residuary personal rights (those that were not expressly mentioned in Part III of the Constitution) and also recognised the common law of right to privacy. Yet the Court held that right to privacy was mutually exclusive of the other fundamental rights and could not be brought under any one provision. In 2017, the nine-judge bench in the case of Justice Puttaswamy decided that the right to privacy is enshrined in Article 21 of the Constitution and is not a mutually exclusive fundamental right. Furthermore, the Court stated that in this era where information technology is taking over most of the aspects of our lives, the Government should provide proper guidelines for maintaining the privacy of personal data and information for security of its citizens. Due to the development of technology, our personal information gets distributed to a large number of organisations as a consequence of the prevalence of e-commerce and e-transactions. There have been a lot of instances where private information has been sold to third parties in return of money, by the e-commerce websites and other such organisations. The right to privacy is the most essential part of the right to personal liberty guaranteed under Article 21 of the Constitution. Liberty is a fundamental aspect to the dignity of an individual. A person has the right to manage his personal affairs without the interference of the Government, and this includes the right to take intimate personal decisions. Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets, namely repose(freedom from unwarranted stimuli), sanctuary (protection from intrusive observation) and intimate decision(autonomy to make personal life decisions).[9] Furthermore, the Court held that the right to privacy does not get automatically surrender when an individual is in a public place. The right to privacy is however, not an absolute right. Subject to the satisfaction of certain tests and benchmarks, a person’s privacy interests can beoverridden by competing state and individual interests.[10]As per Article 21, the right to life and personal liberty cannot be violated except by procedure established by the law. It was made clear by the Court that any such procedure under the law must be fair, just and reasonable to stand the scrutiny by the judiciary. Further, “drawing from the concept of proportionality that is used tobalance rights and competing interests under European law , Chandrachud J., notes that any invasion of life orpersonal liberty must meet the three requirements of (a) legality, i.e. there must be a law in existence; (b)legitimate aim, which he illustrates as including goals like national security , proper deployment of national resources, and protection of revenue; and (c) proportionality of the legitimate aims with the object sought to beachieved”[11], which means a nexus behind the act and the objective of the act. In addition to this, a fourth requirement was added by Chelameswar J., as per which the State must have had a compelling interest such as protecting national security and the like behind an act which intrudes the privacy of an individual. “Borrowing the strict scrutinystandard, typically reserved for discrimination cases in the U.S., he notes that there exists a category of privacyclaims which must satisfy not just the tests of being “just, fair and reasonable” under Article 21, but also a higherlevel of importance in terms of the government’s interest in the privacy intrusion.”[12] Nariman J. and Sapre J. held that the right to privacy shall be analysed on a case to case basis depending on the rights which have been infringed in that particular case. Sapre J. notes that the State can imposereasonable restrictions on the right to privacy “on the basis of social, moral and compelling public interest in accordance with law”, the idea of which is somewhat borrowed from the right to respect for private and family life,home and correspondence[13]enshrined under the European Convention on Human Rights.[14]Again, the test of proportionality is also mentioned by Kaul J. As per Kaul J.’s proportionality test, there must be “(a) legality, (b) necessity (narrow tailoring) and (c) proportionality, which is closer to the European standard. He adds to this the fourth element of (d) procedural safeguards against abuse of interference with rights, which echoes Article 21’s central requirement of having a “procedure established by law””.[15]
Now, coming to the comparative aspect of the judgement, it was stated that our constitutional laws should be interpreted in the global context and keeping in mind the foreign jurisprudences behind foreign laws. In this judgement, the Bench relied on various judgements of USA, UK, South Africa and Canada, and also various international conventions on human rights, in order to reach to the decision of whether right to privacy should be included as a fundamental right. We shall deal with the USA and UK jurisdictions in the following article.
- United Kingdom-In the UK, the concept of privacy previously revolved around the concept of places and trespass. Later on, the focus was shifted to “persons” from “places”. In the case of Kaye v Robertson[16] (1991), a photograph was clicked of the Appellant while he was recovering from an operation in the hospital. The Court had held, that since under the English law there was no provision for the right to privacy, hence no claims can arise from the violation of such a right which does not exist at the first place. In 2004, in the case of Wainwright v Home Office[17], the Human Rights Act of 1998 had not yet come into force, which provides for the protection of the basic and fundamental human rights of the people of UK. So, the Court held that the violation of privacy due to strip-search of a mother and her son while visiting a prison (as per an existing legislation) was basically a tort. So, there must be remedy provided for any distress caused under the law of torts due to the infringement of the right to privacy which is protected under Article 8[18] of the European Convention for the Protection of Human Rights. The judgement of Douglas v Hello! Ltd.[19] was quoted whereby it was stated that the law should not only protect “those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives”[20].
After the Human Rights Act came into being, the right to privacy was included in the Act itself. The Human Rights Act incorporates the human rights which are enshrined in the ECHR into the English domestic law. “The Preamble of the Act states that it “gives further effect to rights and freedoms guaranteed” under the ECHR. Under the Act (S. 6), it is unlawful for any public authority, including a court or tribunal at any level, to act in a manner which is incompatible with a Convention right.”[21] Thus, the Human Rights Act has precedence over any common law or equity laws applicable in the European Union. Any person who is in possession of confidential information and has knowledge that such information is confidential, has a duty of confidence on him to not disclose such information, where a reasonable expectation of privacy is expected of him by the person whose information is possessed by him.[22]In case such information is disclosed or published without any justification, such an act would lead to the invasion of privacy.[23]
In 2016, the case of PJS v News Group Newspapers Ltd.[24], dealt with anonymised privacy injunction. Anonymised injunction means “an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated”.[25]In this case, the Petitioner had sought for an anonymised injunction from publication of the details of his sexual relations with two people, on the basis that it will severely infringe his right to privacy and confidentiality protected under Article 8 of the ECHR. The UK Supreme Court held in the majority decision that, the nature of information which is sought to be published will hamper the right to privacy of the individual, taking into consideration his identity and financial circumstances. Once published, any amount of compensation or damages will be an inadequate remedy.
- United States– The Constitution of USA does not expressly mention or include the right to privacy, but over the years, the American jurisprudence shows that the judiciary has played an important role in incorporating the right to privacy via amendments to the Constitution. The First, Third, Fourth, Fifth, Ninth and Fourteenth amendments of the US Constitution somewhat impliedly include the right to privacy in the US Constitution. In all cases concerning the infringement of the right to privacy, the judiciary must balance the privacy interests of the individuals and the State’s interest (duty) of maintaining the peace and security of the nation. In 1928, in the case of Olmstead v United States[26], the question arose whether evidence from telephonic conversations could be used as an evidence in judicial proceedings, which havebeen collected by wiretapping. The US Court held that the collection of information by wiretapping of telephone lines does not amount to a violation of the Fourth and Fifth amendments of the US Constitution. The majority opinion was that since the evidence was collected by means of a sense of hearing only, and there was no form of trespass involved, hence it could not be said to violate the rights of the individual under the amendments. Thus, the doctrine of trespass was prevalent in this era as a test of right to privacy. Justice Louis Brandies had given a dissenting opinion stating that with the developing technology, the Government will soon device more ways to invade privacy other than just wiretapping. The Constitution makers had conferred upon the people of US the right to be let alone, which is one of the fundamental and essential rights of an individual and “to protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment”[27]. In Griswold v Connecticut[28], the concept of ‘zones of privacy’ was developed. In this case, the Court invalidated a law, which prohibited the possession, sale, and distribution of contraceptives to married couples, on the ground that it violated the right of marital privacy of the couple. This right arises from the penumbras of the fundamental rights guaranteed under the Bill of Rights. The Court further stated, that “no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family” yet this cannot be interpreted to mean that the Court will not interfere when the State takes any action to abridge this right. The matter in this case involves intimate affairs of the everyday life of a couple, which should not be a subject of State scrutiny.
In 1967, in Katz v United States[29], the decision of Olmstead was overruled. The Fourth Amendment was re-interpreted. Katz was using a public telephone booth to transmit illegal wagers. Without the knowledge of Katz, the FBI was recording his calls via an electronic eavesdropping device, which was attached to the phone booth. Later on, Katz was convicted in the basis of those conversations. Katz then challenged the conviction stating that such a way of obtaining information was an infringement of his right under the Fourth Amendment, and constituted ‘unreasonable search and seizure’. The issue in this case was, that whether the unreasonable search and seizure was applicable to tangible property only or intangible property too like telephonic conversations. The Court held that the Fourth Amendment was applicable to intangible properties too, and that the action of the Government lead to the infringement of the right to privacy of the Petitioner. The “reasonable expectation of privacy” test was formulated by Justice Harlan in this case. So, any action of the Government which intrudes upon the privacy of individuals may only be considered to be valid if two requirements are fulfilled- “first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is preparedto recognize as ‘reasonable.’”[30] It was stated by the Court that the Fourth Amendment protects ‘people’ and not ‘places’, and included Government interference. Thus, this approach afforded more protection to individuals in public places.
In Roe v Wade[31], a Texas statute was declared to be unconstitutional because it violated the privacy of a pregnant women by prohibiting the termination of her pregnancy unless it was medically advised for the purpose of saving the life of the mother. The Court stated that such kind of a statute severely infringes the right to privacy of a woman and thus violated “liberty” guaranteed under the Due Process Clause of the Fourteenth Amendment. The interference of the State in a case where the pregnant women wishes to abort the foetus before it reaches viability is not to be accepted and infringes on her right to privacy. However, the interest of the State is to protect the health and life of the foetus, which shall become the child. So, after the viability of the foetus, if any law of the State contains any provision for exceptions whereby to save the life of the mother, the pregnancy may be aborted, then in such cases the State shall be allowed to interfere in such a matter. A similar judgement along these lines of intimate private affair was that of Lawrence v Texas[32], where a sodomy law was held to be unconstitutional thereby legalising same-sex sexual relations between two consenting adults in every state of the US. In the majority opinion, Justice Kennedy had stated, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime… It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter…The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[33] Again, in 2015 in the case of Obergefell v Hodges[34], the Court held that same-sex couples have a fundamental right to marry under the Due Process Clause of the Fourteenth Amendment of the Constitution. Similarly, it can be said that a similar judgement was passed by the Indian Supreme Court in the case of Navtej Singh Johar v Union of India[35], whereby a part of section 377 of the Indian penal Code 1860 (‘IPC’, hereafter) was declared unconstitutional as its criminalised consensual homosexual activity between two adults. The apex Court held that this law violated not only the right to privacy of two consenting individuals but also the right to sexual autonomy of two persons. Moreover, sexual orientation of a person is an aspect which is natural to a human being. Any derogatory societal rules or the public morality cannot be said to supersede constitutional morality. The right to sexual autonomy and to choose a sexual partner as per one’s choice is enshrined under Article 21 of the Constitution of India. It is an established part of a right to life. It was thus decide that when two adults consent to any sexual activity between them, the State should not invade in such a privacy and declare such an act as a crime. Everybody has a right to sexuality under Article 21 of the Constitution. Any criminalisation of a sexual act between two consenting adults behind closed doors is also violative of Article 14, asin case of heterosexual couples, the Court never challenges such an act of the couple nor is their privacyinvaded by the State.In addition, criminalising section 377 violates the rights guaranteed under Article 19(1)(a) of the freedom of expression of the same-sex community.
The development of the jurisprudence on the right to privacy in the United States of America shows that even though there is no explicit mention of the word ‘privacy’ in the Constitution, the courts of the country have not only recognised the right to privacy under various Amendments of the Constitution but also progressively extended the ambit of protection under the right to privacy.[36]
- Joseph Shine v Union of India[37]– In this case, section 497 of the Indian Penal Code 1860, which provides for punishment for the offence of adultery was challenged on the ground that it was in violation of Articles 14 and 21 of the Indian Constitution. When the IPC was drafted by Lord Macaulay, the Indian society was severely patriarchal and women were considered as a property of their husbands. The section is gender-biased, in a way that it does not provide any remedy to the women who is involved as a party to the issue. She can neither file a suit for adultery nor can she be made party to such a suit. The provision expressly mentions that in cases where the women is involved in the act of adultery, she cannot be even charged as an abettor of the offence. Moreover, the section was silent on matters relating to adultery committed by a man with an unmarried woman. This makes it clear, that section 497 was also violative of section 15 of the Constitution as it discriminates women on the basis of sex. Section 497 had also made it expressed that, if there is connivance or consent of the husband or somebody having care of the wife on behalf of the husband, then such act shall not be “adultery” as per the law. Further, Section 198 of the Code of Criminal Procedure did not consider of the wife of the man who has committed adultery, to be an aggrieved party. It was stated in the arguments by the Union that theseprovisionsprovide for the protection of women by providing such distinction in the law which penalises only men, but that was not the essence of Article 15 (3) of the Constitution which states that the State can provide for special laws for the protection of women in the society. This was the view adopted the Court in the case of Yusuf Abdul Aziz v State of Bombay[38].Almost a similar approach was adopted in Sowmithri Vishnu v Union of Indiaand Anr[39]where it was stated by the Bench that any changes in the adultery law were to be made by the legislature and that the matter of discrimination cannot be used to challenge the constitutionality of the law. It was a policy matter.But such an approach cannot be said to have been the intention of the founding members of the Constitution. Thus, such contention was rejected. The constitutional Bench unanimously held that adultery cannot be a crime, but may still be considered as a ground of divorce. Justice Dipak Misra, in his judgement stated that section 497 is “manifestly arbitrary” and declared it and Section 198 of the Code of Criminal Procedure (procedure for filing a complaint in cases if adultery) unconstitutional on the basis of three major points-
“Firstly, he discussed how section 497 is manifestly arbitrary and invites the frown of Article 14 of the Constitution as the provision does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband.
Secondly, he observed that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere which will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Lastly, he noted that a punishment is unlikely to establish commitment, if punishment is meted out to either of the spouses or a third party.”[40]
“Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which isexcessive and disproportionate, suchlegislation would be manifestly arbitrary”[41]
Now, we shall discuss the comparative aspect of the judgement where the Bench had referred to various foreign cases and their jurisprudence of public laws to reach a conclusion apt for the modern society.The Law Commission of India have in its various reports of the years highlighted the arbitrariness of the provision and had even placed proposals for giving the law a gender-neutral approach. Despite of such efforts and proposals, section 497 remained to stay in the IPC until the apex Court’s decision in 2018. The husband cannot be treated as a master of the wife anymore, and equality is what should be focused on in this era.
It was stated in the judgement by the Bench that, the concept of equality before the law was borrowed from the laws of UK, whereas the concept of equal protection of laws was borrowed from the Fourteenth Amendment of the US Constitution. It has often been stated in many cases that, equality before the law is a negative concept whereas the equal protection of laws is a positive one. The reason behind this is that, in equal protection of law, every person irrespective of caste, creed, religion, gender or social standing will be subject to the same laws, but in case of equality before the law, unequal and equals are subjected to the same law.
In the case of R v R[42], Lord Keith had stated, that in the modern times, a marriage is treated as a partnership between equals and no longer can the wife be treated as the subservient of the husband. Further, in Lord Denning had stated that, “A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.”[43] This standing on the status of women/wives in a family was reiterated by Hon’ble Justice Dipak Misra in the case of Voluntary Health Association of Punjab vUnion ofIndia[44]. The Judges had emphasized on Henrik Ibsen’s ‘individualism of women’. It was stated, that John Milton treated women to be the best of all God’s work. Quoting Alexis de Tocqueville from Democracy in America, the Bench said, “If I were asked … to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: To the superiority of their women.”[45]
In the case of Justice K S Puttaswamy v Union of India, it was stated, “Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value,human dignity is an entitlement or a constitutionally protected interest in itself.”[46]Further, it was stated, “Liberty has a broader meaning of which privacyis a subset. All liberties may not be exercised in privacy. Yet others can befulfilled onlywithin aprivate space. Privacy enables the individual to retain the autonomy of the body and mind.”[47]
One of the famous thinkers, Edmund Burke had stated, “a good legislation should be fit and equitable so that it can have a right to command obedience”[48]. This, when interpreted in the proper way, means laws and legislations should be made in a way so as to serve and promote a good life. “Equity” and “utility” of the laws is what is highlighted by Burke in his statements.[49]
“Crime” and its liability was studied by the Bench in the Joseph Shine case, whereby the definition of ‘crime’ was compared as present in different jurisprudences. As per Halsbury laws of England, “There is nosatisfactory definition of crime which will embrace the many acts and omissionswhich are criminal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or well-being of the public generally so that thepublic has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to thegeneral moral sense of the community. It is,however, possible to instance many crimes which exhibit neither of the foregoingcharacteristics. An act may be made criminal by Parliament simply because it iscriminal process, rather than civil, which offers the more effective means ofcontrolling the conduct in question.”[50]Kenny’s Outlines of Criminal Law, 19th Ed., 1966 by J.W. Cecil Turner, differentiated between crime and tort. It was said that any harm to an individual is a harm to the society, as the society is made up of individuals.[51] There is no other specific difference between crime and tort other than the degree of the act. Every crime must have three elements- “(1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.”[52] Blackstone, while discussing on the nature of crime had differentiated between crimes and misdemeanours. He stated, “A crime, or misdemeanour, is an act committed or omitted, in violation of a public law, either forbidding orcommanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonymous terms: though, in common usage, the word “crimes” is made to denote such offences as are of a deeper and more atrocious type; while smaller faults, and omissions of less consequence, are comprised under the gentler name of “misdemeanours” only.”[53]Considering all these existing jurisprudences and definitions, the Court reached to a conclusion that adultery cannot said to fall within the ambit of crime. Moreover, if adultery is made a crime, it does not guarantee that such will help maintain the loyalty of the spouses in such marriage, or in any way improve the situation existing in that marital relationship. Civil actions may be brought for the act of adultery, but making it a crime would intrude upon the privacy of married couples and their marital institution. That would be a violation of Article 21, guaranteeing right to life and personal liberty, which also includes, right to make choices regarding our private affairs of life without the interference of others.
In People’s Republic of China, Japan, Australia, Brazil and other western European countries, adultery is no more treated as a crime. “When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result.”[54] It was stated in the Johar case, that at an international level, adultery is abolished as a crime.
In Judaism and Christianity, adultery was condemned as immoral and considered a sin for both men and women equally. The imposition of criminal sanctions on adultery was also largely based on ideas and beliefs about sexual morality which acquired the force of law in Christian Europe during the Middle Ages.[55]Same was the principle in the Islamic law. Similarly, the judgement had referred to several over ancient laws and jurisprudences, which considered adultery as equally punishable for both men and women.
In England, adultery was considered as a crimefor a decade. But in the periods before and after such decade, adultery in England was considered mostly as a tort, for which “damages were payable to the husband, given his proprietary interest in his wife”[56]. This was where the concept of criminal conversation was established. Later on, in many UK and USA cases, this principle was used by the aggrieved husband to claim damages from the adulterer. But all these cases, dealt with the offence of adultery as a crime, whereby the wife was considered to be the property of the man and thus the man had proprietary rights over her. This was the recognition accorded to the women under the common law. When any man “who enticed her away, or who harboured her or who committed adultery with her”, it led to the notion that the husband’s rights were being violated and thus he must be entitled to receive damages.
In England, as per section LIX ofthe Divorce and Matrimonial Causes Act, 1857, the common law action for criminal conversation was done away with. But, section XXXIII of the same Act was retained which stated aboutthe power to award the husband damages for adultery committed by the wife. This gave a gender-biased approach to the adultery law. Later in 1923,when the Matrimonial Causes Act, 1923 came into force, it made adultery a ground for divorce available to both spouses, thereby giving it a gender-neutral approach. Again, by the Law Reforms(Miscellaneous Provisions) Act, 1970, the right of the husband to claim damages for adultery was abolished.
In United States, adultery was considered as a capital offence, however in most states now such a concept has been done away with. The American Law Institute had removed adultery from its Model Penal Code, as laws relating to adultery are very vague, archaic and sexist.[57]Moreover it was seen, that the old reasons which favoured such adultery laws, such as, “the controlling of disease, the preventing of illegitimacy, and preserving the traditional family”[58] did not exist in the modern society. As a reason, the adultery statutes were not invoked in most cases, and thereby remained as ‘dead letter statutes’.
In South Koreaand Guatemala,provisions similar to Section 497 of the IPC have been struck down by the constitutional courts of those nations.[59] However, adultery still continues to prevail as a crime in the law-books of Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria.[60]
In Namibia, in the case of James Sibongo v Lister Lutombi Chaka and Anr[61], the Supreme Court of Namibia held that dealing with adultery as a crime would not “protect marriage as it does not strengthen a weakening marriage or breathe life into one which is in any event disintegrating”[62]. A constitutional court in South Africa in the case of DE v RH[63] held, “If theparties to the marriage have lost that moral commitment, the marriage will fail, and punishment meted out to a third party is unlikely to change that”[64]. Casting a doubt on the deterrent effect of continuing with adultery as a crime, the Court stated, “Perhaps one reason is that adultery occurs in different circumstances. Every so often it happens without any premeditation, when deterrence hardly plays a role. At the other end of the scale, the adultery is sometimes carefully planned and the participants are confident that it will not be discovered”[65].Further, it stated, that bringing an action on a third party would infringe that party’s right and freedom to use and dispose his body. This was the approach adopted in the adultery case (Joseph Shine) too, as a consequence of which adultery was removed as a crime. “The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.”[66] In the scenario, it is the duty of the Court itself to strike down such discriminatory law and not wait for the legislature to take action.
Further, In 2015, the South Korean Constitutional Court, by a majority of 7-2 struck down Article 241 of the Criminal Law; a provision which criminalized adultery with a term of imprisonment of two years as unconstitutional.[67] The Court tried to bring about a balance between the legitimate interest of the legislature to protect the institution of marriage and marital fidelity and the fundamental right of an individual to self-determination, which includes sexual-self-determination and thereby choosing one’s partner, and was guaranteed under Article 10[68] of their Constitution which states-all citizens are assured of human worth and dignity and have the right to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals. The Court has applied the test of least restrictiveness, as the adultery laws touched upon the fundamental rights of an individual, and thereby an approach which infringed such rights could not be taken.
Hon’ble Justice Chandrachud in his concurring opinion in Joseph Shine, pointed out that the United Nations and other international human rights organisations have taken active steps in uplifting the status of women worldwide. Such a report of the UN stated that,“Given continued discrimination and inequalities faced by women, including inferior roles attributed to them by patriarchal and traditional attitudes, and power imbalances in their relations with men, the mere fact of maintaining adultery as a criminal offence, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality”[69].
These above-mentioned cases are a few instances in which the Constitutional Bench referredto other jurisprudences in reaching a conclusion to the case of Joseph Shine and thereafter declared section 497 of IPC and section 198 of Code or Criminal Procedure as unconstitutional, as infringing Articles 14, 15 and 21 of the Indian Constitution. Further, the provisions also did not satisfy the test of reasonableness. Thus, the provisions were declaredmanifestlyarbitrary, unreasonable, and absurd.
- CONCLUSION AND ANALYSIS:
Thus, we have seen how the Indian judiciary has played an important role in the recent years in developing our Constitution, so that it adapts to the changes, which occur in the society. The concept of constitutional morality is now given more importance than social or public morality, because the society is transforming on a day to day basis. In order for the Constitution to protect our rights and interests in the modern time, the Constitution must also be allowed to transform, but since it is a bulky document, interpreting the provisions in away so as to suit our current needs is seen as an easy approach. Moreover, this kind of approach is applied to other public laws as well, such as criminal laws as we have seen in the case of Joseph Shine. By these judgements, it is made clear to the legislature that any legislation or even bye-laws/rules, which infringes or encroaches upon any fundamental rights guaranteed under Part III of the Constitution will be struck down as unconstitutional and arbitrary. Thus, any fundamental or human rights of any individual cannot be comprised under the garb of ‘public morality’ at any instance.
In this paper, two landmark cases are discussed in detail to show the significance of the study of comparative laws to develop our public laws and the various interpretational principles formulated by the apex Court over the years via such cases. Some other landmark cases highlighting the significance are Indian Young Lawyers Association v State of Kerala[70], Common Cause (A Regd. Society) v Union of India[71], Navtej Singh Johar & Ors. v. Union of India the Secretary Ministry of Law and Justice[72], Shayara Bano and ors v Union of India and ors.[73]and few others.In all these cases, the Indian judiciary had taken up a comparative analysis of the similar or same laws in other jurisdictions, to gauge the effect of such laws on the society and how it may benefit our society, if at all. A comparative study of different jurisdictions and the historical background of their laws helps us to understand their culture and legal framework, and gives us an idea regarding the same/similar treatment that can be meted out to such issues in the Indian scenario, to bring out the best practices of every nation into our legal systems. The judiciary of USA, UK, Japan, South Africa, South Korea and many other nations have adopted the comparative study of public laws approach to solve issues common to all societies. Only the judiciary can take appropriate steps to change or declare unconstitutional a law, which does not suit the public needs and interests, after it has been once legislated. Bringing about amendments by the Legislature is of course another option available, but such takes time, whereas the judiciary acts in a manner whereby the laws appropriate to the society can be speedily applied, which can later on be followed by amending the concerned law. The Joseph Shine case on adultery is an example of this, whereby though adultery is no more a crime but a civil ground for bringing about a divorce petition, yet section 497 is still present in words in the Indian Penal Code.
Judiciary is the enforcer of our rights guaranteed under the Constitution and no law in force can be contradictory to any Constitutional provision. The way in which comparative analysis of different legal systems have helped in the development of our public laws and especially in accordance to the provisions of our constitution can only be understood when we analyse the recent judgements passed by our Supreme Courts, because at the legislative level, the portion of comparative analysis is usually scarcely documented.
[1] Sujit Choudhry, Living Originalism in India: Our Law and Comparative Constitutional Law, 25 Yale J.L. & Human 1 (2013), available at https://digitalcommons.law.yale.edu/yjlh/vol25/iss1/2.
[2] K. Anthony Appiah et al., MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 107, 125 (Amy Guttmann ed., 1994).
[3] Supra at 1, 4.
[4] Id. at 5.
[5]Justice K S Puttaswamy v Union of India, (2017) 10 SCC 1 (India).
[6]Puttaswamy v India, Global Freedom of Expression Columbia University, (Nov. 3, 2019, 09:25PM), https://globalfreedomofexpression.columbia.edu/cases/puttaswamy-v-india/.
[7]M P Sharma v Satish Chandra, District Magistrate, Delhi and ors.,1954 SCR 1077 (India).
[8] Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332 (India).
[9]Vrinda Bhandari et al., (2017), An Analysis of Puttaswamy: The Supreme Court’s Privacy Verdict, IndraStra Global, (Oct. 12, 2019, 08:22AM), https://nbn-resolving.org/urn:nbn:de:0168-ssoar-54766-2.
[10] Id.
[11]Supra at 9.
[12]Supra at 9.
[13]Article 8, European Convention on Human Rights, 1953.
[14] Supra at 9.
[15] Id.
[16] Kaye v Robertson, (1991) FSR 62 (United Kingdom).
[17] Wainwright v Home Office, (2004) 2 AC 406 (United Kingdom).
[18]Supra at 13.
[19] Douglas v Hello! Ltd., (2001) QB 967 (United Kingdom).
[20] Supra at 5, 134.
[21]Id. at 135.
[22] A v B Inc., (2003) QB 195 (United Kingdom).
[23] Douglas v Hello! Ltd., (2006) QB 125 (United Kingdom).
[24] PJS v News Group Newspapers Ltd., (2016) UKSC 26 (United Kingdom).
[25] Supra at 5, 140.
[26] Olmstead v United States, 277 US 438 (1928).
[27] Supra at 5, 144.
[28] Griswold v Connecticut, 381 US 479 (1965).
[29] Katz v United States, 389 US 347 (1967).
[30] Supra at 5, 147.
[31] Roe v Wade, 410 US 113 (1973).
[32] Lawrence v Texas, 539 US 558 (2003).
[33] Supra at 5, 158.
[34] Obergefell v Hodges, 576 US_ (2015).
[35]Navtej Singh Johar v Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016, India: Supreme Court, 6 September 2018, (Oct. 28, 2019, 07:33PM), https://www.refworld.org/cases,IND_SC,5b9639944.html.
[36] Supra at 5, 164.
[37]Joseph Shine v Union of India, 2018 SCC OnLine SC 1676 (India).
[38] Yusuf Abdul Aziz v State of Bombay, 1954 SCR 930 (India).
[39]Sowmithri Vishnu v Union of India and Anr., (1985) Supp SCC 137 (India).
[40] Centre for Public Law at ILS Law College, REMINISCING DIPAK MISRA’S J. SOJOURN AT THE SUPREME COURT, Public Law Bulletin, Vol. 4 (2018), (Nov 5, 2019, 11:28PM), https://ilscentreforpubliclaw.files.wordpress.com/2018/10/plb-october-02-2018-vol-41.pdf
[41] Supra at 37, 25.
[42] R v R, [1991] 4 All ER 481, 484 (United Kingdom).
[43] Supra at 37, 32.
[44] Voluntary Health Association of Punjab v Union of India, (2013) 4 SCC 1 (India).
[45] Supra at 37, 33.
[46]Id.at 40.
[47] Id.at 41.
[48]Id. at47.
[49]Supra at 37, 47.
[50] Halsbury’s Laws of England, 4th Ed., Vol. 11, 11.
[51] Supra at 37, 48.
[52]Id.
[53] Id. at49.
[54]Supra at 37, 56.
[55] James A. Brundage, LAW, SEX, AND CHRISTIAN SOCIETY IN MEDIEVAL EUROPE 6 (2009).
[56]Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23Harv. Women’s L.J. 1, 21-22 (2000).
[57]Hon’ble Justice R F Nariman’s Concurring Opinion,Joseph Shine v Union of India, (Mar. 20, 2020, 09:58 AM) https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/465/32550_2017_Judgement_27-Sep-2018-59-104.pdf.
[58]Id. at11.
[59] Id. at29.
[60] Id.
[61]James Sibongo v Lister Lutombi Chaka and Anr. (Case No. SA77-14, decided on 19.08.2016) (Supreme Court of Namibia).
[62]Supra at 61.
[63] DE v RH, 2015 (5) SA 83 (CC) (Constitutional Court of South Africa).
[64]Supra at 57, 31.
[65]Id.
[66]Id. at 43.
[67]Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court, (Feb 26, 2015), http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do.
[68]South Korean Const., Art. 10.
[69]UN Working Group on Women’s Human Rights: Report, United Nations Human Rights Office of the High Commissioner, (Mar. 29, 2020, 11:37 PM), http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E
[70]Indian Young Lawyers Association v State of Kerala,2018 SCC OnLine SC 1690 (India).
[71] Common Cause (A Regd. Society) v Union of India, (2018) 5 SCC 1 (India).
[72]Supra at 35.
[73] Shayara Bano and ors v Union of India and ors, (2017) 9 SCC 1 (India).
