By Aryan Babele, Executive Editor and Palak Kapoor, Research Assistant
“Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal.”
The potential intrusiveness of technology is shielded by the extent to which the temptations of technology have upended ideas of privacy, confidentiality, personal security and fraud. This seems to have prepared the ground for a technology fix. Privacy, in stricto sensu, allows each person to be left alone as an individual in his own inviolable space. The autonomy over this personal space is yet conditioned by its relationship with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The emergence of new challenges is comprehensively exemplified by the case of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India And Ors.[i], in which the debate on privacy was analysed in the context of a global information society. A nine-judge bench was formed to deliberate upon this dilemma and consequently, on 24 August 2017, Right to Privacy was declared a fundamental right under Article 21 of the Indian constitution. This was a major landmark in the history of Indian Judiciary and the judgement was received by a positive reaction from the citizens. The ruling in the case that privacy is a qualified fundamental right, as an intrinsic part of the right to life and liberty, had a far-reaching impact on the number of other debates related to autonomy and free choice. Justice Chandrachud’s extensive analysis of the concept of privacy in the judgment provides specifically For the key role played by the historic judgment in two broad spheres, deciding the constitutionality of Aadhaar project and the application of right to privacy in matters of sexual orientation. It is significant to observe the upcoming judgments over issues such as marital rape, restitution of conjugal rights, and media trials in the background of the Right to Privacy.
DECISIVE FACTOR IN THE AADHAR CASE & THE NAVTEJ JOHAR CASE
The petitions in the case of Aadhar constitutionality were heard in the light of the fact that privacy is a fundamental right and forms an intrinsic part of the Article 21.[ii] It is true that the Aadhar Judgment has its foundation over the Right to Privacy, but its implications are much wider. As in the Aadhar case, one of the strongest grounds of opposition to the scheme is the concern around mass surveillance. Most of the “Aadhar-enabled” databases were accessible to the government without even invoking the special powers available under the Bill, such as the blanket “national security” clause. It would have been child’s play for intelligence agencies to track anyone and everyone. No other country, and certainly no democratic country, has ever held its own citizens hostage to such a powerful infrastructure of surveillance. The Aadhar project in the case was tested upon the basis of the three-fold test laid down by Justice Chandrachud in the Justice Puttaswamy Case[iii]: (i) legality, which postulates the existence of law; (ii) need, defined in terms of legitimate state aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. The judgment has limited the government’s authority to extend the reach and scope of Aadhar’s application. It was stated by the majority that Aadhar does not lead to the breach of privacy as the data collected is minimal and will only be used as mark of unique identity, not as an instrument of surveillance.
The nine-judge bench in the Justice Puttaswamy case[iv], itself delivered the judgment keeping in mind that a Supreme Court bench of this size was unlikely to be convened again any time soon, therefore in their opinions they addressed many judgments that had been incorrectly decided in the past. In a remarkable example they sailed into the Judgment of the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation[v], where Justice Singhvi had overturned the Delhi High Court’s decision to decriminalise homosexuality on the grounds that the apprehensions of a ‘miniscule fraction’ of the country’s population could not be the basis for declaring that a provision of criminal law was ultra vires the Constitution. The judgment was condemned by the Justice Chandrachud in the Justice Puttaswamy case[vi]. He held that ‘Sexual orientation is an essential attribute of privacy’, which proved to be a challenge to the way in which personal laws operate in India in the judgment of Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice[vii]. As the Right to Privacy was upheld, the discrimination against an individual on the basis of sexual orientation was observed as the deeply offensive to the dignity and self-worth of the individual. In the judgment of Navtej Singh Johar case the Supreme Court’s earlier verdict from Suresh Kaushal case was successfully challenged on the firmer grounds that the Section 377 violates the privacy of citizens.This Right has been extended to the minority LGBTQ community and it is a step towards their upliftment in the society as they too deserve liberty and acceptance.
The impact of the Right to Privacy and its different aspects can be observed in judgments of SC in the cases deciding Constitutionality of Aadhar and Section 377.Right to Privacy being declared as a fundamental right in India had a domino effect on the subsequent judgements and has majorly reformed the laws that govern us. The pattern of observations provides the clear possibility of impacting certain more decisions related to Free Choice and Autonomy, by the hon’ble Court in the near future as well.
RIGHT TO PRIVACY AS A DETERMINER OF “FREE CHOICE” AND “DECISIONAL AUTONOMY”
The idea of privacy, especially in terms of marital and family matters, has been a tool for State to avoid its responsibility by defining and limiting itself at the threshold of home and family. It has also maintained that the constitutionally granted rights of equality and personal liberty to individuals do not apply within the spaces of home and the institution of marriage. Therefore, the conception of the privacy was always that it is vested in the marital union and not in the individual. The same is applied to the legal protections that is granted for maintaining the integrity of privacy of individuals. However, the interpretations of the Right to Privacy in the Justice Puttaswamy’s case has provided a conception of privacy which has placed the individual, collectively, at the heart of privacy.
Justice Nariman’s opinion on the “right of personal choice” forms the bedrock of the conception of right to privacy that can swept away the exception of marital rape“the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices.” [viii]
Bodily integrity, consent and dignity fall within the umbrella of the Right to Privacy and it is now the duty of the judiciary to protect individuals against the violation of these rights. In recent times, Indian courts have laid emphasis on the importance of ‘consent’[ix] in a marriage and this has led to the possibility of marital rape being criminalised in the future. A woman’s bodily integrity falls within the ambit of her Right to Privacy and this right is not subjected to a married pair but to individuals. Earlier, the matter between a married couple was considered to be their private affair but with this judgement, the nine-judge bench has highlighted the fact that privacy is a right available to an individual for his/her bodily integrity. It has been acknowledged that a woman has the choice not to engage in a sexual relationship with her spouse and if this decision is not respected, it would amount to rape. With privacy being recognised in the context of decisional autonomy, the constitutional challenge to the exception of marital rape looks more likely to succeed than ever.
The long-held concern that the restitution of conjugal rights, as provided by Section 9 of the Hindu Marriage Act, violates the Right to Privacy and hence is unconstitutional, can be taken up again by the Hon’ble SC. The concern was first addressed by the Andhra Pradesh HC in the case of T.Sareetha v. Venkata Subbaiah[x]in 1983, which held the restitution of conjugal rights as unconstitutional and based its decision taking in consideration the privacy of an individual. The decision of the Andhra Pradesh HC was later rescinded by the SC in Saroj Rani v. Sudarshan Kumar Chadha.[xi] The fundamental issue at the heart of this debate has been whether the right to privacy extends to home and marital relationships. The Right to Privacy being extended to the individual is also going to upheld that the Section 9 of the Hindu Marriage Act is unconstitutional.The Right to Privacy takes in right not only of restriction-free movement but also encroachment-free private life. If any restriction or restraint on a person’s movement affects his personal liberty, then certain physical encroachment on his private life would affect his privacy to a large degree. Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.
Along with the issues related to family and home, media trials are also being questioned on grounds of constitutional law that they violate a person’s Right to Privacy under the garb of Right to Freedom of Speech. These two overlapping fundamental rights are a reason of conflict between authorities. Recently, senior advocate Indira Jaisingh stated before the apex -court that “Pronouncing someone as guilty or not guilty is the function of the court and not the media,” while she pointed out that media trials violate a person’s right to privacy. The media shapes the midset of the people and declares the innocence or guilt of the accused before the court decides upon the case In sensitive cases, some vital information related to the case is often released by the authorities themselves to the media. This creates a prejudice in the mind of the masses and causes chaos in a civil society. We can look forward to media trials being challenged in the courtroom with the possibility of a new judgement based on the idea of Right to Privacy.
The nine-judge bench of the Supreme Court in the Justice K.S. Puttaswamy case had convened to redress an ancient anomaly in our jurisprudence that will also be a significant upgrade to the constitution in the context of a/the society of Information-Technology. After unequivocally establishing that even though it wasn’t written in our Constitution, citizens in fact have a fundamental right to privacy, the apex court used an opportunity of having nine wise men assembled together in one place to reflect on the challenges that lay before us. It is this verdict that proved to be a balancing factor for the cases deciding on the constitutionality of Aadhar project and the Section 377 of the Indian Penal Code, 1860. It is here that a new balance struck- one that needs to ensure that the ends of governance and societal benefits are achieved without the human and social costs that would come from thoughtlessly implementing new privacy safeguards. The Right to Privacy as a fundamental right is going to impact more significantly in near future as observed in the case of the Aadhaar Project and the Section 377 case.
[i]Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India And Ors., (2017) 10 SCC 1.
[ii]Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors, WP (CIVIL) NO. 494 OF 2012.
[iii]Supra note i.
[v]Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
[vi]Supra note i.
[vii]Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice,WP(Crl.)No.76/2016WP (Crl.) No. 76 /2016.]
[viii]Supra note i.
[ix]Sree Kumar v. Pearly Karun, 1999 (2) ALT Cri 77.
[x]T.Sareetha v. Venkata Subbaiah, AIR 1963 AP 356.
[xi]Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562.