Insight, Aug '17
Vivek Divan on the commitment and flourish shown by the Honourable Supreme Court of India in rescuing the right to privacy from oblivion
Remarkable events occurred in the Supreme Court of India earlier in the week. One was a chipping away at the oppressive patriarchy that infiltrates all organized religion, in this case reflected in the rejection of the custom of instant triple talaq in India. Another was of the pushing back of the oppressive State from the lives of Indians through the categorical assertion of the Fundamental Right to Privacy as unambiguously inherent to human life.
The second was remarkable for a few reasons. For one, the emphatic nature with which the Supreme Court articulated the right to privacy – if only the judgment was considerably shorter, and the reading habit ascendant – the stirring words of the court are a must-read for every Indian. They evoke the finest attributes of human nature; they inspire us to be better in our personal and public conduct, with and for each other, and for a society that aspires to its highest capacity to support all its segments.
The words are a refreshing change from the insular, pathetic ‘othering’ and demonization that has permeated the national conversation through politics, noisy media and the fomenting of bigotry. Read some of the court’s words out loud, and get goose bumps:
“Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude . . . Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”
More specifically, for queer people:
“Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.”
I remain dazzled. From accounts that were written about the arguments that took place in the courtroom, the court would probably acknowledge that its eloquence was allowed to flourish due to the eloquence of the lawyers arguing before it.
I remain dazzled for another reason too – an aspect of the judgment that cannot but remind me of BDSM. There’s a self-flagellation that is something to behold! The court recognizes its own error, and describes its own perverse Koushal decision, which recriminalized non penile-vaginal sex in 2013, as “flawed” and the sort that “cannot be accepted”. The judgment also states that the Koushal judgment is a “discordant note which directly bears upon the evolution” of understandings on the right to privacy by the Supreme Court over the years. The court repeatedly castigates itself. Responding to the preposterous reasoning of the 2013 ruling that Section 377 didn’t merit striking down since it was used very rarely to prosecute, the court says such reasoning is:
“. . . misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place . . . The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”
And this, again referring to Koushal’s egregious logic:
“That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”
The court, while expressing condemnation of its own reasoning in Koushal in relation to the rights to privacy and dignity, points out that as the curative petition challenging Section 377 (and seeking to remedy Koushal) is pending before another bench of the court its constitutional validity should be decided there. This essentially means that the Supreme Court has acknowledged the need to relook at the Koushal decision given its faulty understanding of the right to privacy. Indeed, I believe the court is implicitly telling the queer communities to come before it – again – for it seems open to the re-examination of an unjust ruling. Unexpected and remarkable!
Further remarkableness lies in beholding the expansive understanding that the Supreme Court has given to the notion of privacy, not just as a matter of physical space but as vitally of personhood. Mentioning contexts such as the right to refuse life-prolonging medical treatment, a woman’s freedom to choose abortion, choices of dress and appearance, or what a person may want to eat, the court uses breathtaking language to remind us of the extent of our freedoms, and the limits of the State:
“Above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.”
The court reminds us of another crucial aspect that needs recall in times when the very foundations of a liberal constitutional democracy are challenged as undesirable from some quarters:
“All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.”
So we have a decision of our apex court that does not infantilize the citizenry, but evokes a society that lets communities and people bloom to their full potential. It emphatically rejects the shocking argument of the government that the Fundamental Right to Privacy does not exist in India, instead articulating the right as intrinsic to people in a free society. By doing so it has rearticulated a vision of freedom, and created an opening for many claims, not least that of queer Indians to demand the decriminalization of their lives. Here’s a rousing conclusion:
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”
Main graphic credit: Pawan Dhall (collage of media headlines on the Supreme Court’s verdict on right to privacy – the headlines are, clockwise from the top, from Ei Samay, Hindustan Times, Amar Ujala and The Indian Express newspapers and NDTV channel).