Last week, the US Supreme Court issued its ruling in Dobbs v. Jackson Medical, overturning Roe v. Wade – a decision that has guaranteed women’s abortion rights since 1973. Five conservative judges held that state legislators should be able to legislate based on whether they felt a woman’s decisional autonomy over her body was more important than the act of taking her “potential life.” In doing so, he established zero decades of jurisprudence. which developed on the basis of the Roe case, and also threatened many other civil liberties in the subsidiary territories. Almost overnight, women in some US states lost the ability to terminate unwanted pregnancies and were at risk of criminal prosecution if they tried.
The US Constitution is silent on whether women have the right to an abortion. Roe v. Wade held that such a right was enshrined in the right to liberty set forth in the 14th Amendment. To date, no federal statute has codified into law the principles set out in Roe v. Wade (or a subsequent decision in Planned Parenthood v. Casey). This made it possible for the court’s conservative majority to question the grounds on which these decisions were issued and to declare that the right to abortion was neither “rooted in the country’s history and tradition”, nor “in the history and tradition of the country”. Ordered liberty” was an essential component.
This decision will also have an impact on personal privacy. Several state laws now expected to take effect will not only criminalize abortion, but help make anyone liable to criminal prosecution. This would prompt law enforcement agencies and advocates of vigilance justice to seek evidence of violations in a manner that affects the privacy of all concerned. Women in the US are already being advised to remove period tracking apps on their phones and be mindful of who they speak with on fertility issues.
As much as it was about women’s right to choose and the privacy implications of having it right away, it was also a decision that revisited the limits of judicial precedent. One of the fundamental principles of judicial decision-making is the principle of stare decisis – a Latin word meaning “to stand by what has already been decided”. This requires judges to ensure that their decisions are logically consistent with previous decisions on the subject, so that jurisprudence is maintained. As a result, past decisions are rarely reversed; Best of all, they are separate from the bus.
The US Supreme Court has taken the strong step of reversing Roe v. Wade, making it clear that under this principle it will not be held for ransom. The principle of prying eyes, the majority argued, could not compel courts to adhere to impractical or badly reasoned decisions—otherwise the bad decisions would live on forever.
This is a risk inherent in all judge-made laws. What one judge considers to be law today, may be overturned by another tomorrow. Unless judicial precedent is properly codified into law, it runs the risk of changing if judicial thinking on the subject changes.
When the right to privacy was challenged before the Supreme Court of India, the main argument of the state was that there was no such right in our Constitution. Two early Supreme Court decisions—MP Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh—actually using a fundamental approach to constitutional interpretation that the US Supreme Court used to overturn Roe v. Wade, was no different. , This allowed the Attorney General of India to argue that there is no such thing as a fundamental right to privacy in the country; And even though subsequent judgments held that such authority existed, they did so by ignoring the binding precedents of 8-judge MP Sharma and 6-judge Kharak Singh court decisions.
To settle the matter definitively, nine judges of the Supreme Court of India had to be called to decide the issue in the case of Puttaswamy v Union of India. They stated in five different consensus opinions that the fundamental interpretation on which they based the initial judgment was wrong, and that the Indian Constitution is a living document that must be continually reinterpreted in its current social context.
That said, as clear as the 9-judge endorsement of the fundamental right to privacy, it is at the end of the day a judicial precedent that suffers from the weaknesses of the judge-made law. Even though it proposes a 4-part test to determine whether the actions of the government violate personal privacy, how this test actually applies will vary depending on the facts and viewpoints of the judges. will vary, to those who are asked to interpret it. It is only after the principles laid down in the Puttaswamy case are codified into a law that we can hope to achieve the level of confidentiality that we require.
It is not clear when, if this will happen. Even before the final decision was announced in Puttaswamy, work had begun on a secrecy law under the aegis of the Justice Srikrishna Committee. Today, six years later, we are no closer to implementing the law than when we started it.
Those whose privacy has been violated by the state may be able to rely on Puttaswamy’s decision for recourse. But as Dobbs v Jackson Health in the US has shown us, the judge-made law is unenforceable – valid only so long as it is either set aside or dismissed outright.
Though Puttaswamy may seem invincible, I have never learned to say no.
Rahul Mathan is a participant in Trilegal and also a podcast called Ex Machina. His twitter handle @matthan . Is