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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.

Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.

India is a union of 28 states and 7 Union Territories. Several of its states and sub-state national communities have since the time of independence complained of inadequate representation in the Union, violating their right to self-rule. There exists persistent resentment against the present constitutional setup. This paper examines the failures and potential of federalism and bicameralism as strategies to promote self-rule in India among sub-state communities and reconcile it with the ideal of equal representation. These two strategies seek to promote the coexistence of diverse communities by meeting the demands of self-rule, while uniting them at the national level. The paper first looks at Indian federalism, and particularly Indian asymmetric federalism. In theory, Indian federalism seeks to promote the value of self-rule. However, in practice, it fails to accomplish its objective. It also creates institutions based on ethnic identities that disproportionately empower sub-state national communities, simultaneously disempowering other individuals and groups. The paper then turns to Indian bicameralism. In its limited design, the Indian upper house does little to reduce the fissiparous tendencies of sub-state communities in India. Moreover, the current theory of bicameralism seems to allow little opportunity for bicameralism to address these problems in India. However, bicameralism can be further developed theoretically as an institutional mechanism to foster self-rule among sub-state communities in fractious countries – in effect as a middle ground between the theories of federalism and consociation. Applying this theoretical model in practice to the Indian upper house would have potential benefits. A restructured Indian upper house that represents sub-state national communities equally could increase the ability of these communities to participate meaningfully in their own rule, while remaining within the ideal of proportional representation.