The Indian Jurisprudence of the Right to Privacy and its implications for the Women of India today – A Critical Analysis

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Article 21 of the Constitution of India states that no person shall be bereft of his life or personal liberty except consistent with procedure established by law. The Constitution of India doesn’t explicitly perceive the “right to privacy’’ as a fundamental right under this article. Recently, in the case of K. Puttaswamy v. Union of India (2017), a nine-judge seat of the Supreme Court held that the right to privacy is an inalienable fundamental right that is founded on values such as dignity which underlie all our fundamental rights. At its center, it implies the “right to be left alone.” Likewise, this fundamental right protects a person’s personal decisions and information from interference.

What are the ramifications of this judgment for women’s rights in the present day context? As Justice D.Y. Chandrachud states, “feminist legal theory has always had an ambivalent relationship with the right to privacy”. In what follows, I argue that the right to privacy as conceived within the Puttaswamy judgment has the potential to rework the landscape of the legal regulation of women’s lives.

This paper will cover three main areas, the first part will trace the evolution of the Right to Privacy in the Indian jurisprudence. The second part will critically analyse the judgement put forth in the Puttaswamy Case. And finally, the third part will revolve around the extent of application of the judgement for protecting a woman’s right to privacy, in the present day context.

Keywords: Right to Privacy, Feminism, Puttaswamy Case, Fundamental Right, Women’s Rights, Constitution of India

1.1 Introduction

Privacy is an inherent human right that is enjoyed by every human being and enables an individual to lead a dignified life. Black’s Law Dictionary defines privacy as the “right to be let alone” and the Anglo–Saxon jurisprudence stated that the right to privacy focuses mainly on protecting “private” spaces, being the home, from state interference on the belief that “a man’s home is his castle” and he exercises absolute power within that space[1]. When this protective boundary of an individual is invaded, mishandled or intruded illegitimately by the Government or other individuals, it becomes a problem.

Privacy is a fundamental human right recognized in Article 12 of United Nations Declaration of Human Rights (UDHR), Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and in many other international treaties. In India, Right to Privacy has not been explicitly mentioned as a fundamental right in the Indian Constitution. However, in the light of recent judicial pronouncements of the Supreme Court, the Right to Privacy has been recognized as a fundamental right under Article 21 of the Indian Constitution.

The Puttaswamy Case was considered a game changer in this regard as it expanded this right to protect intimate relationships, such as the family and marriage from state intervention. It also covered within its ambit individual autonomy by preserving a person’s bodily integrity, as well as his/her autonomous decision making capacity. Privacy was also seen to extend to other aspects, including bodily protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or to move or think. The most important highlight of this judgement was that all the nine judges unanimously placed the ‘individual’ in the heart of privacy and that a “private space” is a creation of the individual and that it warrants constitutional protection. It acknowledged that privacy at its core, is the inalienable right of an individual, intrinsically bonded with his/her life.

What does this judgement mean for a woman in India ? Are we asking ‘the woman question’?

As Justice D.Y. Chandrachud states, “feminist legal theory has always had an ambivalent relationship with the right to privacy”. In what follows, the author aims to trace the evolution of the right to privacy in India and to analyse whether the judgement as conceived in the Puttaswamy case has the potential to reshape the landscape of legal regulation of privacy in women’s lives as opposed to the judgements from the latter years.

1.2 The Indian Jurisprudence of Right to Privacy

The Right to Privacy isn’t explicitly stated within the Constitution. Hence, it is not mentioned in Part III of the Constitution that deals with Fundamental Rights. The right to privacy was a concept that was birthed in the field of Tort law. Under this law, a replacement explanation for action for damages as a result of “unlawful invasion of privacy” was recognized.

Right to Privacy has never been listed as a fundamental right and has always been a subject of interpretation by the judiciary. The 1954 case of MP Sharma v. Satish Chandra[2], was the first privacy dispute that arose. This was the primary major judgement which addressed Right to Privacy in India. In this case, the petitioner challenged the constitutionality of search and seizure of documents from a person against whom a first information report had been lodged. The Court was to ascertain whether search and seizure activities of the Government would in any way breach the right to privacy. The Apex Court in this case held that the right to privacy was not a fundamental right under the Indian Constitution. It was considered to be a reasonable restriction of the freedoms and it could not be held unconstitutional. Thus, the Supreme Court decided in favour of the practice of search and seizure.

In 1962, in the Kharak Singh v. State of UP[3] case, the Court examined the power of police surveillance when dealing with acquitted criminals. The case dealt with the issue of state surveillance. The petitioner was a dacoity accused who was let off citing lack of evidence. However, he was regularly surveilled by police authorities and he approached the court. The petitioner claimed an infringement of Article 19(1)(d) and Article 21 of the Indian Constitution. The judgement was ruled in favour of the police, saying that the right of privacy is not guaranteed under the Constitution.

Both M.P. Sharma[4] and Kharak Singh[5] followed the law set by A.K. Gopalan v. The State of Madras[6]. Here, the Court stated that privacy is ensured according to the “procedure established by law”. This meant that protection of privacy can be claimed by an individual under Article 21 only if a procedure is laid down in an enacted law. However this judgement was overruled 1978 in Maneka Gandhi v. UOI[7] by relying on the judgement of the R.C. Cooper v. UOI[8]. In this case the ambit of Article 21 was broadened to include within it a variety of rights. This paved a way for an interpretorial change in the jurisprudence of privacy.

The first case where the Supreme Court expressly declared Right to Privacy as a fundamental right was the case of Gobind v. State of MP[9]. The Supreme Court held that the right to privacy arises from both article 21 and article 19, the freedom of speech and movement. The Court further observed that the right to privacy included “personal intimacies of the home, the family marriage, motherhood, procreation and child bearing”. However, the Supreme Court held that Right to privacy was not an absolute right and is subject to “the procedure established by law”. The judgement of R. Rajagopal v. State of T.N.[10] case also held that the violation of the right to privacy is a fundamental rights violation.

Fast forward to 1997, the case of PUCL v. Union of India[11] popularly known as telephone tapping cases, the Supreme Court extended the ambit of this right and unequivocally held that individuals had a privacy interest in the content of their telephone communications. Some other cases include the District Registrar and Collector, Hyderabad & Anr. v. Canara Bank & Anr[12], Petronet LNG Ltd v. Indian Petro Group & Anr[13] and Selvi & Ors. v. State of Karnataka & Ors.[14] In these cases, the Supreme Court traced the roots of the right to privacy to personal liberty, freedom of expression and freedom of movement which are fundamental rights guaranteed by the Indian Constitution. The Court concluded that right to privacy deals with persons alone and that a State can intrude upon a person’s privacy only in three cases, if there’s a legislative provision, by way of administrative or executive order or by complying with a judicial order. The bench also held that the right is only available to persons and thus corporations and companies cannot claim a fundamental right to privacy. The Court further held that a right to privacy claim can be only brought against a State. The Supreme Court also acknowledged the distinction between physical and mental privacy through these cases and stated that, “Subjecting a person to techniques such as narco analysis, polygraph examination and the Brain Electrical Activation Profile test without his or her consent violates the subject’s mental privacy.”

Thus, through these series of judgements, it can be observed that the right to privacy was slowly being recognised in Indian jurisprudence as a fundamental right primarily through Article 21. In want of a specific law on privacy, this right is legally claimed under the Information Technology Act, 2000.

1.3     A Critical Analysis of the ‘Puttaswamy Case’

1.3.1  Case Brief

On August 24, 2017, the Supreme Court pronounced the landmark judgement for the case, Justice K.S. Puttaswamy v. Union of India. The case began with addressing the issue of whether the right to privacy was a fundamental right. This issue was raised in 2015 regarding the legal validity of the Aadhaar database. The Court unanimously declared without even a single dissenting opinion that the Right to Privacy is a constitutional right and an integral part of Part III of the Constitution of India. The Bench also held that the Right to Privacy falls within the ambit of Article 21 of the Constitution. The Apex Court while deciding this judgement, overruled the judgements of the M.P. Sharma[15] case and the Kharak Singh[16] case through a bench of 9 judges. The Supreme Court, however, held that Right to Privacy is not an ‘absolute right’ but a partial one.

1.3.2 Facts of the case

This case began when a petition was filed by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court with regard to the Aadhaar Project. This project was led by the Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit recognizable proof number given by the UIDAI to the citizens of India. The Aadhaar project was connected with a few government assistance plans, so as to smooth out the cycle of administration conveyance and eliminate bogus recipients. Thus, the appeal initiated by Justice Puttaswamy was a case which tried to challenge the constitutional legitimacy of the Aadhaar Card program.

In 2015, the argument for the procurement of demographic biometric data by the government was presented before a three judge bench of the court on the grounds of infringement of the right to privacy. The Attorney General of India argued against the existence of this fundamental right. He referred to the judgements in M.P. Sharma and Kharak Singh. The three Judge Bench went against this opinion by observing a few judgments of the Supreme Court in which the right to privacy had been held to be an intrinsically ensured basic right.

The case was then alluded to a Constitution Bench to examine and determine the accuracy of the judgments set down in M.P. Sharma[17] and Kharak Singh[18]. On 18 July 2017, a Constitution Bench of nine adjudicators addressed the issue.

 

1.3.3 Decisions

The Puttaswamy case judgment is 1047 pages in length. The Supreme Court conveyed the judgment through six separate opinions. To summarize the whole judgment in a couple of lines, the Supreme Court held that security is an intrinsically shielded right arising principally from Article 21 of the Constitution. The court unanimously held that life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of an individual, equality between human beings and the quest for liberty are the underlying  pillars of the Indian Constitution.

Like different rights which structure the freedoms secured by Part III, including Article 21, protection is certifiably not a flat out right. A law which infringes upon protection should withstand the standard of reasonable limitations on fundamental rights. Be that as it may, the Court did pronounce three tests which are to be fulfilled in order to encroach upon an individual’s basic right to protection of privacy. They are the legality of the object, the need for a legitimate aim and proportionality. If the given tests are satisfied, the State can encroach an individual’s key right to privacy. In the event that protection is disregarded with regards to a subjective State, the activity would draw in a “reasonability” test under the Article. For example, phone tapping guidelines would embroil both a resident’s ability to speak freely (Article 19(1)(a)) just as her own freedom (Article 21). Under the Court’s investigation, such a law would need to be legitimate under one of the particular limitations in Article 19(2), as well as being “reasonable, just and fair” as needed by Article 21. This was held in the PUCL case[19]. The Court, likewise proclaimed that privacy is innate to every single principal freedom in Part III of the Constitution, for a dignified existence subject to reasonable restrictions of public health, morality and order. Privacy thus, has both a positive and a negative connotation. The negative aspect controls the state from intruding upon the life and individual freedom of a citizen. Its positive aspect forces a commitment on the state to take all fundamental means to secure the protection of the person.

The judgment further asserted three parts of the crucial right of privacy, specifically, interruption with an individual’s physical body, informational privacy and privacy of choice and thereby covered the body and mind, including decisions, choices, information and freedom. The court augmented the ambit of protection and said it incorporates at its center the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation which enable an individual to live a dignified life. The court stated that privacy likewise implies a “right to be left alone”. Personal choices governing a way of life are intrinsic to privacy. Privacy is not lost only in the light of the fact that the individual is in a public spot. Privacy attaches to the person regardless of the place he/she finds herself in. The court also implied that this is a right which ensures the internal circle of the person from obstruction from both State, and non-State entertainers and permits the people to settle on self-ruling life decisions.

This judgment overruled the choice in MP Sharma[20] which holds that the right to security isn’t ensured by the Constitution. The choice in Kharak Singh[21] to the degree that it holds that the right to privacy isn’t ensured by the Constitution was overruled too. The judgement also acknowledges technological advancements and urges that the understanding of the Constitution should be tough and adaptable to permit people in the future to adjust its substance, remembering its fundamental highlights. By making privacy an intrinsic part of life and liberty under Article 21, it is not just a citizen, but anyone, whether an Indian national or not, can move the constitutional courts of the land under Articles 32 and 226, respectively, to get justice. 

1.4    Privacy and Women’s Rights in India

1.4.1 Are we asking the “Woman Question”?

Gender structures our mind of what is private and what isn’t. For instance, sexual relations are by and large viewed as a private issue and though the state doesn’t wish to meddle in marital rape, it then again enforces restitution of conjugal rights through its courts and regulates adultery through criminal sanctions. Unmistakably the limit of the private isn’t sex, but marital sex. Sex outside marriage, for example, in adultery or sex work, is denied a similar degree of security assurance as sex inside marriage. After Suresh Kumar Koushal v. Naz Foundation[22] case homosexual conduct is likewise inside the domain of public guideline. Taken together, these models show that the comprehension of security with regards to sexual exercises depends on sexual hetero normativity. Women’s activist researchers have exposed the thought that there is no distinction between the domains of public and private. Ideas of privacy safeguard certain spaces, for example, the home and connections like marriage from state scrutiny.

This limit can leave people inside these spaces and relations defenseless against abuse, coercion and discrimination. Originations of the home as a position of “repose” and “sanctuary” crush lived encounters of women for whom these spaces are frequently destinations of persecution and brutality[23]. Terming something as private can likewise prohibit it from the open arena. For instance, stamping homosexuality as private can genuine the assessment that homosexuality is adequate, as long as it’s anything but out in the general population and transgressing such boundaries of the public and private can invite social and legal backlash in the form of violence or the deployment of legal sanctions. Spatial thoughts of privacy additionally assumes that everybody has access to private spaces. This may not be the situation for some because of financial failure, or for same-sex, intercaste, or interfaith couples. In these circumstances, the private space of the home can be stifling in its control and the open arena may be a position of relative autonomy.

In the light of the above stated issues, ‘different voices’ of women should be incorporated in the predominant constitutional discourse. The notion of sisterhood and the assumption that there can be a commonality of interests and aims amongst all women must be done away with[24]. In other words, the author argues that each feminist struggle is incomplete without its specific ethnic and historical context. The tendency to assume a fixed definition of woman or a rigid standard for women’s experiences that is homogenizing, exclusionary and oppositional and treating them as a single analytical category has serious implications especially with the issue of privacy.

This problem urges us to ask the “woman question”. The ‘woman question’ as suggested by Katherine Bartlett asks about the gender implications of a social practice or rule. In law, the question aims to examine if the values and experiences specifically adhering to women have been taken into account, if existing legal standards put women in a disadvantaged position or how these legal fallouts can be rectified[25]. The  Puttaswamy judgment clearly addresses ‘the woman question’. The move away from spatial and relational framings of the right to privacy, to decisional and informational privacy, has opened up new dimensions for women’s rights and empowerment. By grounding the right to privacy in individual autonomy and control over important areas of one’s life, this right empowers women to question social and legal structures that limit their ability to exercise control over their body, mind and livelihood. All around, the Puttaswamy judgment accepts this thought that protection is grounded in singular self-determination. The view that privacy also attaches to persons and not places and a person enjoys a degree of privacy even in public spaces opens up a whole new ambit of the right to privacy.

The judgement attempts to ask and address the ‘woman question’. By grounding the right to privacy in individual autonomy, this right empowers women to question the social and legal structures that limit their ability to exercise control over their bodies, minds, and lives. The Puttaswamy judgment considers to be fundamental the personal choices protected by the right to privacy. This includes decisional, informational, sexual and reproductive autonomy. The author now aims to probe into the extent of application of the judgement in the aforementioned areas of autonomy.

1.4.2 Informational Autonomy

The Puttaswamy case emerged with regards to the forthcoming test to the lawfulness of the Aadhaar. A significant worry with the Aadhaar is that by amassing and conglomerating data about people, it can make frameworks of surveillance over the whole populace. Be that as it may, surveillance as a procedure of force and a strategy for social control is authorized every day upon womens bodies. Women are subject to constant scrutiny of their bodies, actions, and choices. This surveillance operates through peer policing, and results in judgment, shaming, ridicule, exclusion, and abuse, or threat for the nonconformity with gender norms[26]. Social surveillance pushes women towards self-censorship and adherence to gender norms. Accordingly, policing of women’s bodies and conduct is fundamental to the support of male centric society. This likewise hinders self determination and self-development, the ideas that are foundational to the right of privacy. [27]

While the implementation of sex standards through peer policing isn’t restricted to women, they, alongside sexual and gender minorities, are more powerless to constrained congruity since they are more susceptible to coerced conformity since they face a higher likelihood and increased severity of social sanction. Surveillance gives public authorities power over an abundance of data about an individual and can deliver such people helpless against dynamic compulsion, through behaviors like stalking or extortion. The lived encounters of women as subject to social observation of their bodies and the resultant requirement of sexual orientation standards gives a vital illustration of how Aadhaar-empowered reconnaissance systems may smother rebelliousness and difference. These encounters likewise feature autonomy and equality-based concerns with other data collection exercises, such as mandatory registration of all pregnancies and early terminations[28]. In a social setting where society passes judgment on women for their sexual and contraceptive decisions, obligatory divulgence of such data may compel women in settling on such decisions and also in accessing safe and legal reproductive health services.

The gendered impact of surveillance on the autonomy of women as well as the autonomy of sexual and gender minorities to govern life with agency and autonomy also emphasises the need for strong decisional and informational privacy protections not only for individual autonomy, but also for group equality. The Puttaswamy judgment doesn’t straightforwardly address the lawfulness of observation components. Nonetheless, it gives an informational tool stash to perceive the damages of observation as itemized previously. The majority judgment discovers privacy to be an “intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.” Likewise, privacy is important to protecting the “plurality and diversity of our culture”. Justice Kaul in the judgement briefs about new innovations that empower surveillance and profiling and warns that “knowledge about a person gives power over that person,” and that the state may utilize individual data to control people, in this way stifling contradiction. Regardless of such reformist language, be that as it may, the judgment leaves open a wide window for data collection about individuals for purposes such as national security, crime prevention and investigation, public interest, and revenue protection.

1.4.3 Sexual Autonomy

The judgment has effectively struck the passing chime for the criminalisation of homosexuality by naming the judgment in the Suresh Kumar Koushal case[29] as a “harsh note” in the bend of Indian privacy jurisprudence. Likewise, laws that don’t perceive womens consent to sex as significant inside a marital relationship[30] can likewise be tested for abusing the right to decisional and sexual privacy. After the passing of the Protection of Children from Sexual Offenses (POCSO) Act, 2012 and the Criminal Law (Amendment) Act, 2013, the age of consent for sex has been raised from 16 to 18. This complete denial of sexual autonomy to all persons below the age of 18 may be open to constitutional scrutiny as it is a valid infringement of their right to privacy. The denial of sexual autonomy to all minors becomes especially significant in light of Section 19 of the POCSO Act, which requires healthcare professionals to mandatorily report to the police any case of sexual abuse that has taken place or is likely to take place.

This means that when a minor approaches a healthcare professional for contraception, or for abortion or antenatal care, the case has to be mandatorily reported to the police, regardless of her wishes in the matter. This constitutes not only a control over an individual’s fundamental personal choices but also an infringement of informational privacy. Similarly, Section 357C of the Code of Criminal Procedure expects doctors to obligatorily report sexual violence cases involving adult women victims, may also be constitutionally challenged after the Puttaswamy judgment. Likewise, the framework for the regulation of sex work under the Immoral Trafficking (Prevention) Act, 1986 will also be brought into scrutiny as it limits the autonomy of persons who engage in sexual labour out of their own volition. For example, lower class women provide financial stability for their families through the income garnered through prostitution.

1.4.4 Reproductive Autonomy

Reproductive independence includes mainly the fundamental individual decisions that are secured by the right to privacy. In the event that choices around reproduction are secured by the right to privacy, this can raise doubt regarding rules that seek to enforce a two-child norm, such as the Haryana Panchayati Raj (Amendment) Act, 2015, which disqualifies a person with more than two children from being elected to posts in institutions of local self-government. The draft Panchayat Regulation, 2021  unveiled on the 25th of February proposes to disqualify any person from the panchayat regulations with more than two children and seeks to remove a person with more than two children from the panchayat, can also be brought under constitutional scrutiny for the right to reproductive autonomy.

1.4.4.1 Abortion

If procreative decisions are truly within the boundary of privacy according to the Puttaswamy judgement, and given that women continue to bear the bulk of childcare responsibilities, should it not be the woman’s decision whether or not to abort a child for whatever reasons she deems fit? The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 criminalises sex determination, and not abortion. However, if a woman has a right to choose to know the foetus’ sex, then can the state prevent her from accessing information that will enable her to make the decision of abortion? [31]

No statutory law or court decisions recognise the right to abortion. Abortion is regulated by the Medical Termination of Pregnancy (MTP) Act, 1971. The act prohibits abortions unless medical opinion supports the need for the same on certain limited grounds granted under sections 3 and 5 of the act. A woman cannot exercise her autonomy when choosing to abort a child at any stage of the pregnancy. Thus, shifting an “intimate decision” to abort from the woman to her doctor is antithetical. The Puttaswamy judgment will, subsequently, have huge ramifications for the law on abortions and can totally overturn the MTP Act regime.

If the legal system recognises the right to abort, as Justice J Chelameswar’s states in the Puttaswamy judgment, it will also have to determine the extent to which the state can intervene in the exercise of this right. Right to privacy is often framed in negative terms, as the “right to be let alone”. The obligation inferred on the state is to refrain from interfering within the private boundary. But the state must be able interfere in order to create a space when an individual can exercise her autonomy. For example, in the United States, the right to abortion is protected as an “intimate decision”. Feminist scholars have found it problematic that under the privacy framework the state has no affirmative obligation to provide access to abortion services to those who cannot access these services due to impoverishment or for other reasons.[32] The plurality opinion in the Puttaswamy judgment has addressed this concern by asserting that the state has an affirmative obligation to ensure the creation of conditions for the effective exercise of the right to privacy.

1.4.4.2 Surrogacy

Another reproductive rights issue that has as of late involved the spotlight is that of surrogacy. With the emergence of Assisted Reproductive Technology (ART), surrogacy has become more common, especially amongst couples who are unable to conceive. Surrogacy is a complex issue which poses multiple legal and ethical questions. Commercial surrogacy has been criticised within a specific stream of feminist discourse for commodifying the reproductive capacities of women.[33] Scholars have highlighted race and class considerations, since women living in abject poverty and women of colour are more vulnerable to exploitation through surrogacy.[34] Numerous cases of abandonment of babies, exploitation of surrogates and egg donors, and non-payment of promised monetary compensation are reported[35]. In India, similar conditions were voiced adding to this, the Indian judiciary had to resolve legal issues concerning the “statelessness” of youngsters born out of surrogacy[36]. Given these issues, the Union Cabinet approved the Surrogacy (Regulation) Bill in 2016. The bill attracted heavy criticism from the outset.

The bill allows surrogacy just for married couples and excludes LGBTQ or live-in couples, single, divorced, or widowed parents, criminalising their exercise of reproductive autonomy during this matter. The surrogacy bill also severely limits the autonomy of married couples and potential surrogates with stringent conditions and requirements for eligibility certificates for both parents.[37] This bill is vulnerable to constitutional challenge under the purview of the Puttaswamy judgement for violating the right to privacy. The nine judge bench didn’t explicitly mention surrogacy, but it affirmed existing privacy jurisprudence, which has recognised personal decisions about birth and babies as being a part of reproductive autonomy.

1.5 Conclusion 

The Indian jurisprudence on the right to privacy has evolved in ways unimaginable. The Puttaswamy judgement has reshaped the purview of privacy by considering it an inalienable right intrinsically wound in every individual. The judgement has emphasised on informational, decisional, sexual and reproductive autonomy enabling the individual to have better control over the decisions that shape his/her livelihood. This judgement has opened up a new paradigm with regards to the rights of women by enabling women to ask the “women question” thereby empowering her to question the constitutionality of social and legal structures that limit their ability to exercise control over their bodies, minds, and lives and to hold the state accountable for intrusion into her privacy. The court through this judgement recognizes the need for protection of privacy for the ever evolving gender identities and gender minority groups in the country to tackle issues such as surveillance. The societal norms and practices stifling abortion, surrogacy, sexual labour can now be constitutionally challenged on the notion of autonomy.

The nine judge bench have thus provided a broad and categorical affirmation of the centrality of individual liberty to the Indian constitutional regime and have stated that privacy attaches to the individual and not on the space or the relationship one holds. This paper has not analysed the fallouts of the Puttaswamy judgement. But some opinions in the judgement strike a discordant note, and hark back to references of spatial and relational notions of privacy, stating that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”. Such language can prompt a contention between the rights of an individual when pitched against the “preservation” of the institution of family or marriage. This discordance in the Puttaswamy judgment, between the logic of privacy grounded in individual autonomy and its reiteration of the language of spatial and relational privacy, leaves open the possibility that future conflicts of this nature might be resolved in favour of protecting social institutions over individual freedom. This is not a far fetched assumption as seen in the case of Saroj Rani v. Sudarshan Kumar[38]. 

Certain laws, such as the marital rape exemption, are outrightly based on gender stereotypes and normative gender roles. In other cases, gender structures the implementation of laws through judicial interpretations. Therefore, when courts categorise gender nonconforming attitudes such as being a “career-oriented” woman[39] or not cooking for one’s husband[40], or asking the husband “without cause” to live apart from his parents[41] as “cruelty” for the purposes of granting divorce, they actualize and reinforce gender norms under the power of the law. This is the case when courts do not believe women speaking up about sexual violence. Such adjudicatory practices encode these gender norms into the law and thereby into the livelihood of women in general.

These laws are open to constitutional scrutiny after the Puttaswamy judgement but this is not enough to invalidate the laws. If the state can show that the infringement is a valid limitation upon the right, the law will survive nonetheless. The right to privacy simply enables the ability to question these laws and seek justification from the state for their enactment. Thus, this judgement can have an  impact on the existing constitutional order only when the subsequent courts read the judgment and translate its essence into concrete constitutional protections. Particularly taking into consideration the fact that the judgment speaks in multiple voices on what amounts to permissible limitations on the right to privacy. Determining what constitutes the rationale of the court on this issue will shape the extent of protection offered by this right. Applied consistently, this simple yet radical idea can unravel significant parts of our laws and regulations, especially those relating to gender and sexuality.

“The old order changeth yielding a place to the new.” – Justice Kaul

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References

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End Notes

[1] Peter Semayne v. Richard Gresham, 77 ER 194

[2] MP Sharma v. Satish Chandra, 1954 AIR 300

[3] Kharak Singh v. State of UP, 1963 AIR 1295

[4] Ibid, 2

[5] Ibid, 2

[6] AK Gopalan v. State of Madras, AIR 1950 SC 27

[7] Maneka Gandhi v. UOI, AIR 1978 SC 597

[8] RC Cooper v. UOI, AIR 1970 1 SCC 248

[9] Gobind v. State of MP, 1975 AIR 1378

[10] R. Rajagopal v. State of T.N.,1994 SCC 632

[11] PULC v. Union of India, AIR 1997 SC 568

[12] District Registrar and Collector, Hyderabad & Anr v. Canara Bank & Anr, AIR 2005 SC 186

[13] Petronet LNG Ltd v. Indian Petro Group & Anr, 5 CS(OS) No. 1102 of 2006

[14] Selvi & Ors. v. State of Karnataka & Ors., (2010) 7 SCC 263

[15] Ibid, 13

[16] Ibid,11

[17] Ibid, 2

[18] Ibid, 2

[19] Ibid, 8

[20] Ibid, 3

[21] Ibid, 3

[22] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013

[23] Harvinder Kaur v. Harmander Singh, 1984 Del 66

[24] Devangana Kuthari, Revisiting Puttaswamy : A Feminist Critique – The Woman Question and the Physiological Paradigm of Abortion in Privacy, 2 IJLT 5, 6 – 9 (2020).

[25] Katharine T. Barlett, Feminist Legal Methods, 4 HarvLRev 829, 837–850 (1990).

[26] Neil M Richards, “The Dangers of Surveillance,” 126 HarvLRev 1934, 1934–65 (2013).

[27] Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics,” 89 CalLRev 643, pp 643–740 (2001).

[28] Chetan Chauhan, “Govt to Monitor Pregnancies, Abortions,” Hindustan Times, (Jul. 18, 2021, 8:32 PM), http://www.hindustantimes.com/india/govtto-monitor-pregnancies-and-abortions/storykHk4KcRCIswkzHNZS6qqAJ.html.

[29] Ibid, 27

[30] Indian Penal Code, § 375 Exception 2, 1860 (India).

Hindu Marriage Act, § 9, 1955 (India).

[31] Nivedita Menon, “Abortion as a Feminist Issue,” Outlook (Jul. 9, 2021, 3:00 PM), https://www.outlookindia.com/website/story/abortion-as-a-feminist-issue/280902

[32] Reva Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Faculty Scholarship Series 815, 817-822 (2007).

[33] Katherine Lieber, Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?,68 IndLJ 205, 205-232 (1992).

[34]Judith Warner, Outsourced Wombs Opinionator, The New York Times, (Jul. 12, 2021, 9:32 AM), Outsourced Wombs – The New York Times (nytimes.com)

[35] Bindu Shajan Perappadan, A Setback for Surrogacy in India?, The Hindu, (Jul. 3, 2021, 9:30 PM), http://www.thehindu.com/opinion/op-ed/a-setback-for-surrogacy-in-india/a.

Commercial Surrogacy in India Engenderings, (Jul. 15, 2021 5:30 PM), http://blogs.lse.ac.uk/gender/2016/12/21/commercial-surrogacy-in-india/

[36] Baby Manji v. Union of India, AIR 2009 SC 84

Jan Balaz v. Anand Municipality & Ors, AIR 2010 GUJ 21

[37] Surrogacy (Regulation) Bill,  2016,  § 2, 3, 4, (India)

[38] Sarojini Rani v. Sudarshan Kumar, AIR 1983 AP 356

[39] Suman Kapur v. Sudhir Kapur, Appeal (Civil), 6582 of 2008

[40] Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

[41]  Narendra v. K Meena, Civil Appeal No. 3253 OF 2008

Joanna Esther Shalini  is an student at Chettinad School of Law. The views of the author are personal only, if any.


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