Justifying privacy: The Indian supreme court’s comparative analysis

Baruah, Pritam and Deva, Zaid (2019) Justifying privacy: The Indian supreme court’s comparative analysis. In: The Indian yearbook of comparative law 2018. The Indian Yearbook of Comparative Law . Springer, Singapore, pp. 191-212. ISBN 9789811370519

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The opinion authored by Justice Chandrachud in K. S. Puttaswamy v. Union of India has extensively employed philosophical and comparative materials in justifying a fundamental right to privacy under the Constitution of India. Here, we examine some implications of the reliance on such materials. We first argue that the court relies on a strong liberty-based zonal view of privacy. However, its reliance on Aristotle’s views is controversial, and reliance on JS Mill’s views does not immediately yield a strong zonal argument. The opinion’s aggregation of “intimacy-based”, “expectation-based”, and “other guarantees-based” justifications that are reflected in decisions in the USA also presents conceptual difficulties in understanding the composition of a private zone. We then point out that as in the USA and South Africa, liberty-based justifications in the opinion gradually gravitate towards autonomy-, personhood- and finally, dignity-based accounts. The opinion’s theoretical explanation of the relationship between these concepts however makes their individual content elusive and warrants ironing out of some inconsistencies that emerge. Dignity-based views may not yield a zonal argument like the liberty-based views employed by the opinion earlier. We then indicate that dignity-based arguments for privacy do have to contend with certain differences with liberty-based views owing to their distinct historical evolution in law, and in light of the liberty-restraining potential of dignity.

Item Type: Book Section
Keywords: Justice Chandrachud | K. S. Puttaswamy v. Union of India | Right to Privacy |
Subjects: Social Sciences and humanities > Social Sciences > Social Sciences (General)
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Subhajit Bhattacharjee
Date Deposited: 01 Apr 2022 09:38
Last Modified: 01 Apr 2022 09:38
Official URL: https://link.springer.com/chapter/10.1007/978-981-...
URI: https://pure.jgu.edu.in/id/eprint/2054


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