The Supreme Court and I have a love-hate relationship. Actually, I’m not sure what the Supreme Court thinks of me, but I certainly have a tumultuous, draining and constantly fluctuating opinion of it. Just this last month has been so trying for our relationship: We dealt with the watering down of the dowry act and the continued legality of marital rape of children, and the Court’s alarmingly patriarchal process in the ongoing Hadiya case. But then, as if to end the fortnight on a high note and keep things spicy, the SC came up with the triple talaq judgment, and topped it up with Thursday morning’s guarantee that the right to privacy is a fundamental one.
Thursday morning’s judgment left everyone feeling pretty euphoric even before the full details and implications came out. That’s because the fight for privacy has been a long one, spanning about 63 years, and a look back (which you can quite easily, thanks to NLU Delhi’s super handy infographic on the subject here) shows you just how closely women and the right to privacy have interacted over the years.
Looking back at this point also shows you just what a boon the right to privacy has generally been to women, and how close we almost came to losing something so useful. For the most part, the notion of individual privacy has been used by the courts to protect women from a number of different horrors, some so specific that they’re hard to imagine. Like in 2009, when in the Suchita Srivastava & Anr vs Chandigarh Administration the court ruled that a rape victim, who suffered from mental illness had had her right to privacy violated when the High Court ordered the medical termination of her pregnancy despite her stated wishes to carry the baby to term, and that the right to privacy gives women the right to choose whether they want to procreate or not. Or in 2007, in the case of Anuj Garg and Ors vs Hotel Association of India, where the Court ruled that a section of the Punjab Excise Act that disallowed women from working in establishments that serve liquor was constitutionally invalid, as a person’s right to privacy includes their right to choose a profession.
The Supreme Court also found, in a 2013 case called Lillu @ Rajesh & Anr vs State Of Haryana, that the harrowing “two finger test”, where doctors insert two fingers into the vagina of a rape victim to ascertain whether she has been raped, violated a rape survivor’s right to privacy, and their physical and mental integrity and dignity. Various high courts have, in different cases over the years, also ruled that “sexual violence is an unlawful intrusion of the right to privacy and sanctity of a woman”, meaning that one of the reasons why sexual violence is understood to be an awful crime is that it violates a woman’s privacy.
All of these cases show you how closely women and privacy have interacted in the courts over the years. Being able to see just how useful this right has been to women also makes you doubly angry at the current government for even daring to try and argue before the Supreme Court that we don’t have it, all in order to implement universal Aadhaar (which asks for your retina scans and fingerprints).
As lawyer Usha Ramanathan, who has been tracking Aadhaar since 2009, points out, Thursday morning’s judgment hardly creates a new right: In it, the judges have pointed out that the right to privacy is both fundamental and inalienable, meaning that we always had this right by virtue of being born human, and the nothing and no one can take it away from us. “It’s not that the Court has created this right; it has only told the government that it was wrong to ever argue that we don’t have it.” By explicitly laying down that we have a fundamental right to privacy, the Court has also made it clear that it’s actually the government’s duty to actively protect this right the way it must other fundamental rights. Hah!
Honestly, it’s an exciting judgment on several fronts. Because, for the first time in Indian jurisprudence, the court has spelled out that we have a fundamental right to privacy, and has also outlined what that right looks like.
This judgment allows for three categories of privacy: Spatial, or the privacy accorded to private spaces like the home or bedroom; informational, or the privacy accorded to mental and physical information and data; and decisional, or the privacy accorded to making certain intimate decisions without interference, like on sex and sexual orientation.
Now, the concept of privacy accorded to a certain space, like the home or bedroom, has been one that has troubled women in the past, because it allows for the State to ignore the very real violence that women face within domestic spaces, by, say, imagining that a husband beating his wife is a “private family matter”. Excitingly, the Court has gone out of its way to acknowledge this feminist concern, and in one paragraph in J Chandrachud’s judgment, even explicitly mentions that privacy shouldn’t be used “as a cover to conceal and assert patriarchal mindsets”. The same paragraph says the challenge here is enabling the state to take violence against women in the domestic sphere seriously while still protecting the privacy rights of women. And so it is.
This excellent acknowledgement of feminist concerns (which cough cough word on the street says is J Chandrachud’s attempt at creating his legacy, but who can say for sure and please I don’t care in the middle of my romantic feelings towards the SC) can be extrapolated in really useful ways. Most immediately — by saying that a woman’s right to bodily autonomy and decisional privacy cannot be cancelled out by the right to spatial privacy of the home — the Supreme Court has taken away one of the strongest arguments for keeping marital rape legal. The defenders of marital rape can no longer say that the State shouldn’t interfere in a marital relationship, as the government did in 2016, because the Court has explicitly laid out that the concept of spatial privacy shouldn’t stop the State from taking violence against women seriously.
The Delhi High Court will be hearing another petition on marital rape on Monday. Karuna Nundy, a senior advocate working on that case, sounds almost amused when she tells us, “Let’s see what happens now.”
Interestingly, this judgment also goes out of its way to diss the Supreme Court’s own ruling in Suresh Kumar Koushal & Anr vs Naz Foundation & Ors (2013), the case dealing with the criminalisation of certain sexual acts under Sec. 377. In Thursday’s judgment, five judges have critiqued the Supreme Court’s ruling in Koushal vs Naz Foundation, pointing out that privacy isn’t something that’s conditional to the number of people who seek it (the judges in the Koushal judgment held that since the LGBT community makes up only a minuscule percentage of the population, their protections and rights were basically not worth upholding). And (this is so good) that it isn’t fair to call them “so-called rights”, as the bench did in Koushal. The explicit critique of the judgment fills most people with hope, because it’s unlikely that after all this, the curative petition in this case will uphold the legality of Sec 377.
All in all, we’re living in pretty exciting times. As my colleague at TLF said, all they have to do is give a proper judgement in the Hadiya case, and we’re set to throw a party. With an SC-shaped cake.
Co-published with Firstpost.