This article was written by Yashi Shrivastava, a student of Banasthali University, Jaipur.
The Constitution of India guarantees certain rights to the individuals. The unanimous decision by the Supreme Court declaring “Right to privacy” as a fundamental right has opened a new era in Indian Constitutional Law. Earlier, this right was untouched but after the judgment it has brought our country into the forefront with other democracies of the world explaining the meaning of ‘privacy’ widely. The word privacy means- the quality or state of being apart from company or observation or freedom from unauthorized intrusion. Every person has their own personal life which cannot be intruded by some other person or external factors.
The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.
According to Alan Westin,”each individual is continually engaged in personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.”
The history of Right to Privacy dates back to some landmark judgments which laid down the foundation of Right to Privacy.
In Kharak Singh vs. State of UP, 1962 the petitioner filed a writ petition for violation of his fundamental rights u/a 32. The Supreme Court had held that there was no fundamental Right to Privacy in the Indian Constitution. Similar judgment was given under the M.P. Sharma case where Supreme Court held that right to privacy is not a fundamental right.
In Rajagopal vs. State of T.N, 1995 the freedom of press was put in question. Gauri Shankar alias Auto Shankar was a prisoner convicted for murder of six and sentenced to death by the Madras High Court in 1992. Shankar wrote his autobiography which involved names of IAS and IPS officers involved in the crime. The autobiography was to be published by Nakheeran. On gaining knowledge of an autobiography to be published, officers cancelled publishing the autobiography. Hence the publishers were not allowed to publish. The court held that Right to Privacy is a part of article 21 and a right to be let alone.
In Naz Foundation vs. Govt. of NCT Delhi, 2006 Naz Foundation, a Non-Profit Organization (NGO), filed a public litigation challenging the constitutional validity of Section 377 of Indian Penal Code, 1860 (IPC) which penalizes ‘unnatural offences’ as mentioned in the Act. The court held that Section 377 of IPC discriminated a particular section of individuals solely based on their sexual orientation and condemned Section 377. But it did not decriminalize the provision stating that the power to amend or repeal the section lies with the Parliament and not the judiciary.
Now, what brought back the right to privacy back into the light was a verdict given by the Supreme Court in Justice K.S. Puttaswamy vs. Union of India and ors. The government’s move to make Aadhar card mandatory has once again triggered to discuss the right to privacy as fundamental right. It is a landmark case where Supreme Court held that the right to privacy is protected under Article 21 and part 3 of the Constitution. The right to privacy is not an absolute right and has reasonable restrictions like other rights guaranteed in the constitution.
The recent judgment has brought the ray of hope for the constitutionality of the section 377 of IPC which criminalizes consensual sexual acts between consenting same-sex partners. An individual’s sexual orientation and gender identity should be protected on an equal basis as it lies at the core of fundamental rights under article 14, 19 and 21. The LGBT community is considered as the miniscule of the Indian population. Moreover their rights are considered as the “so-called rights”. This judgment has not only benefitted them, it also eradicates the notion of “so-called rights” and illusory rights.
A women’s right to privacy, dignity and bodily integrity sits under the purview of Right to Privacy. Whether a woman can abort her foetus conceived through rape? In a nation where misplaced patriarchy manifests itself through judgments disallows abortion of foetus is an unambiguous declaration in favor of individual’s privacy. The Right to Privacy may prove to be a major milestone towards securing gender justice for the historically suppressed half of our population.
In the context of marital rape, it is still not criminalized in India. Sections 375 and 376 of IPC still exclude marital rape from its ambit. Marital rape is sexual intercourse with wife without her consent or out of threat or forcefully. According to section 376 of IPC a husband is guilty of marital rape only if wife is below 15 years of age and even if the husband is guilty the punishment is not a severe one. In the recent judgment marital rape is not criminalized. It considered that rape in a marriage is “private matter” and state should not interfere in it. This serves as a loophole in The Right to Privacy.
So, The Right to Privacy has opened new gates for the Indian democracy. It has not only served as a savior to protect personal rights of individuals but also safeguards the rights of the miniscule community of India. This judgement marks the dawn of golden age in the Indian constitution.
With Right to Privacy as fundamental right many hurdles have been overcome. However some major steps are still to be taken in regard of marital rape which is still not criminalized in India and is a mark of blotch in a pious relation like marriage.
In the end, Right to Privacy has brought our country in the forefronts with other democracies of the world.