Judge Made Laws

The US Supreme Court’s decision in Dobbs v. Jackson Medical overturned Roe v. Wade, ending the guaranteed right to abortion since 1973. The ruling challenges decades of jurisprudence, threatens civil liberties, and impacts personal privacy. It also raises questions about the doctrine of stare decisis and the frailty of judge-made law.

This article was first published in The Mint. You can read the original at this link.

Last week, the US Supreme Court issued its judgement in Dobbs v. Jackson Medical, overturning Roe v. Wade—a decision that has since 1973 guaranteed women’s right to abortion. Five conservative judges held that state legislators should be able to enact laws depending on whether they felt a woman’s decisional autonomy over her body was more important than her act of taking a “potential life".

In doing so, they set at nought decades of jurisprudence that had developed on the basis of Roe v. Wade, and also threatened a host of other civil liberties in ancillary fields. Almost overnight, women in some American states lost the ability to abort unwanted pregnancies and ran the 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 implicit in the right to liberty set out in the 14th amendment. To date, no federal statute has codified into law the principles laid down in the case (or the subsequent decision in Planned Parenthood v. Casey). This made it possible for the court’s conservative majority to question the very basis on which these judgements had been issued and declare that the right to abortion was neither “rooted in the nation’s history and tradition", nor an essential component of “ordered liberty."

The decision will also have an impact on personal privacy. Many state laws expected to now come into effect will not only criminalise abortion, but also make anyone who assists in securing one liable to criminal prosecution. This will motivate law enforcement agencies and purveyors of vigilante justice to seek evidence of violation in ways that impinge on the privacy of everyone concerned. Women in America are already being advised to delete period tracking apps on their phones and take care who they speak with on reproductive issues.

Stare Decisis

As much as this was a case about women’s right to choose and the privacy implications of taking that right away, this was also a decision that revisited the boundaries of judicial precedent.

One of the fundamental principles of judicial decision-making is the doctrine of stare decisis—a Latin term which means “to stand by things already decided". It requires judges to ensure their decisions are logically consistent with past judgements on the subject, so that jurisprudential coherence is maintained. As a result, past decisions are rarely overturned; at best, they are just distinguished from.

By taking the extreme step of overturning Roe v. Wade, the US Supreme Court has made it clear that it will not be held to ransom by this principle. The doctrine of stare decisis cannot, the majority argued, compel courts to abide by unworkable or badly reasoned judgements—else bad decisions would live on forever.

As unsavoury as this might be to legal purists, this is the risk inherent in all judge-made laws. What one judge holds to be law today, another could overturn tomorrow. Until a judicial precedent has been properly codified into law, it risks being changed as and when judicial thinking on the subject changes.

The Indian Right to Privacy

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 judgements of the Supreme Court—MP Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh —had actually held as such, using an originalist approach to constitutional interpretation no different from that which the US Supreme Court used to overturn Roe v. Wade. This allowed the Attorney-General of India to contend that the country had no such thing as a fundamental right to privacy; and even though subsequent judgements had presumed that such a right exists, they had done so by ignoring the binding precedents of the 8-judge MP Sharma and 6-judge Kharak Singh court decisions.

In order to definitively put this matter to rest, nine judges of India’s Supreme Court had to be convened to decide this issue in the case of Puttaswamy vs Union of India. They held in five separate concurring opinions that the originalist interpretation upon which those early decisions had been based was wrong, and that the Indian Constitution is a living document that must be continually re-interpreted in its current societal context.

We Need a Privacy Law

That said, as categorical as this 9-judge endorsement of the fundamental right to privacy might seem, it is at the end of the day a judicial precedent that suffers from the frailties of judge-made law. Even though it proposes a 4-part test to determine whether or not acts of the government violate personal privacy, how this test is actually applied will vary based on facts and perspectives of the individual judges called upon to interpret it. It is only once the principles set out in the Puttaswamy case have been codified into a law that we can hope to achieve the level of certainty that we need on privacy.

It is unclear when, if at all, that will happen. Even before the final judgement in Puttaswamy was announced, work on a privacy law had begun under the aegis of the Justice Srikrishna Committee. Today, a good six years later, we are no closer to having that law in place than when we began. Those whose privacy has been infringed by the state might be able to rely upon the Puttaswamy judgment for recourse. But as Dobbs v. Jackson Health in the US has shown us, judge-made law is evanescent—only valid until such time as it is either distinguished from or over-ruled outright.

Indian courts may be different from those in the US and, numerically speaking, Puttaswamy seems unassailable, but if there is one thing I have learnt it is never to say never.