The Supreme Court’s Right to Privacy Judgment – V: Privacy and Decisional Autonomy

The Supreme Court changes its mind frequently, often holding that its own previous judgments are no longer good law. It is rare, however, for the Court to reverse itself in a case where the correctness of a prior judgment was not at issue, and was not argued by counsel. For that reason, the Puttaswamy plurality’s castigation of the Supreme Court’s 2013 judgment in Koushal vs NazFoundation – which recriminalised homosexuality – is particularly important. It is important because, in singling out Koushal as a judgment that got things badly wrong, the plurality (supported by observations from Justices Chelameswar and Kaul) gives us an insight into not only into the abstract formulation of decisional autonomy as an aspect of privacy, but also into how it might be applied in concrete cases.

The Formulation of Decisional Autonomy

Decisional autonomy is the one aspect of privacy that overlapped precisely across the formulation adopted by Justices Chandrachud and Nariman, and the slightly different formulation endorsed by Justice Chelameswar. Justice Chelameswar’s three-pronged definition of privacy consisted of “repose, sanctuary, and intimate decision” (para 36). Elaborating upon the third aspect through examples, he cited “… the choice of people regarding the kind of literature, music or art which an individual would prefer to enjoy” (para 37), “an individual’s rights to refuse life prolonging medical treatment or terminate his life” (para 38), “a woman’s freedom of choice whether to bear a child or abort her pregnancy” (para 38), “the freedom to choose either to work or not and the freedom to choose the nature of the work” (para 38), and the freedom not “to be told by the State as to what [one] should eat or how [one] should dress or whom [one] should be associated with either in their personal, social or political life.” (para 39) Many of these, readers will recall, are live issues before the Court (and Justice Chelameswar acknowledged as much).

Justice Bobde emphasised the centrality of “choice” in associative freedoms (para 31), as did Justice Nariman, who observed that the “privacy of choice… protects an individual’s autonomy over fundamental personal choices.” (para 81) This he linked further to both democracy (“… the core value of the nation being democratic… would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed…” (para 82)) and dignity and autonomy (“… 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 (para 85))

“Choice” was a central part of Justice Kaul’s opinion as well – so much so that it bookended his judgment, featuring both at the beginning (“[Privacy] is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so…” (para 10)) and at the end (“… it is an individual’s choice as to who enters his house, how he lives and in what relationship…” (para 78)). And Justice Chandrachud’s plurality formulated the right in the following terms: “Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress” (para 142). It then took specific example, such as compulsory sterilisation programs for women (para 157), sexual orientation (para 168), and “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.” (para 169)

Beef and Alcohol

Between them, the separate opinions in Puttaswamy set out a rather clear exposition of decisional autonomy as a facet of the right to privacy. Furthermore, the recognition of decisional autonomy is bound to have a serious impact upon a number of cases pending before the Courts, as well as settled cases that may now be reopened. These include issues of abortion, euthanasia, food choices, sexual orientation, and so on. In this essay, I will focus on three issues that present different perspectives on decisional autonomy, and the leave the rest for readers to consider for themselves.

First, the beef ban appeals. Recall that in May 2016, the High Court of Bombay had struck down a part of Maharashtra’s Animal Preservation Act, which criminalised possession of beef brought from outside Maharashtra, on privacy grounds:

“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health… the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice… this intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21… thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone… in the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)

The State of Maharashtra appealed against this finding, and the case is due to be heard next week. In view of the clear observations of the nine-judge bench, it seems highly likely that at least this part of the judgment will be upheld. Note, however, that the Bombay High Court also upheld other sections of the Act, which criminalised sale and transport of cattle for slaughter, as well as possession of cattle flesh as a result of illegal slaughter (some of the issues were discussed on this blog, here). The petitioners before the High Court have appealed against those parts of the decision. The Bombay High Court’s judgment was based on a series of Supreme Court judgments (discussed in the blog post) which had upheld cattle slaughter bans based upon the economic necessity of the cow and cattle products such as cow dung. While that might continue to be used as a ground to justify bans on cattle slaughter, what will be now be interesting to watch is whether the provision criminalising possession of cattle flesh (that is, flesh of cattle slaughtered illegally) can survive the strong statement of the right to privacy endorsed in Puttaswamy – and whether, further, the Court’s proportionality analysis when considering cattle slaughter bans will itself undergo an alteration.

Similar considerations also apply to prohibition laws, including Bihar’s recent legislation, which was struck down by the Patna High Court (analysed on this blog here), and then stayed immediately by the Supreme Court, where one of the concurring judges had noted:

“Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink. We have to view this concept in changing times, where international barriers are vanishing. Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behaviour, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.” (paragraph 88.04)

While staying this judgment, Justice Dipak Misra (now Chief Justice of India) had reportedly remarked in court that “alcohol and fundamental rights do not go together.” Puttaswamy, however, makes it rather clear that there is no such constitutional doctrine in existence – in fact, quite the contrary. It now remains to be seen whether the fate of alcohol bans will be different.

Sex Work

The Immoral Traffic (Prevention) Act of 1956 regulates sex work in India. Section 20 of this Act states that:

“A magistrate on receiving information that any [person] residing in or frequenting any place within the local limits of his jurisdiction, is a prostitute, may record the substance of the information received and issue a notice to such [person] requiring him to appear before the magistrate and show cause why he should not be required to remove himself from the place and be prohibited from re-entering it.”

When a previous variant of this was challenged before the Supreme Court in 1964, it was upheld on the following basis:

“The differences between a woman who is a prostitute and one who is notcertainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an overcrowded town or in a place within the easy reach of public institutions like religious an educational institutions. Though both sell their bodies, the latter is far more: dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deportation. The object of the Act, as has already been noticed is not only to suppress immoral traffic in women and girls, but also to improve public moralsby removing prostitutes from busy public places in the vicinity of religious and educational institutions.”

If privacy includes decisional autonomy, however (and as Justice Chelameswar correctly pointed out, decisional autonomy includes choice of work), then surely there exists no a priori moral difference between someone who is a “prostitute” and someone who is engaged in any other occupation. There is, therefore, at least a prima facie constitutional violation when a Section singles out sex workers alone, and makes them liable for “removal” from a place at the instance of a Magistrate.

Admittedly though, in upholding the Section, the Supreme Court focused primarily on the relationship between sex work and (the deterioration) public morals. And it is in this context that we must now turn to Puttaswamy’s rejection of Koushal vs Naz.

Sexual Orientation

Justice Chandrachud’s plurality opinion referred to Koushal vs Naz as “a discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” (para 124) To substantiate this, he cited Koushal’s infamous line about “the so-called rights of the minuscule minority” (para 125), and then went on to note that Koushal was wrong because “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.” (Para 125) The plurality concluded this point by noting that:

“…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

The crucial point, however, is that in Koushal, the minuscule minority comment did not feature as part of the judgment’s discussion of privacy. Koushal’s “analysis” of privacy began at paragraph 45 of that judgment. It specifically acknowledged that privacy is a fundamental right under Article 21 (para 46) – and that includes the right to bodily integrity and sexual choices (para 47) –  quoted all the precedents on the point (paras 48 to 50), and then – stopped. There is no specific finding in Koushal on how Section 377 of the IPC withstands a privacy analysis. Given that the Court upheld the Section, however, it clearly survived privacy scrutiny, but not on the ground that the LGBT community had no right to privacy (because that was acknowledged by the Court in para 47 by invoking sexual choices). The only other logical possibility is that Koushal held that Section 377 justifiably limited the right to privacy.

Now, before the Delhi High Court, where the matter was heard originally, the State had advanced two justifications for Section 377 – public health and public morals. While the State did not appeal the High Court’s decision to read down Section 377, an appeal was carried by numerous religious groups, who adopted the same arguments, while focusing on morality. Public health is a purely fact-based argument, and the absence of any discussion on that point in Koushal clearly indicates that that could not have been the reason for upholding Section 377. That leaves us only with public morality.

It is here that Justice Chandrachud’s observation attains crucial significance, because he noted that:

“… 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 use of both words – “legislative” and “popular” is surely no accident. If Justice Chandrachud was only referring to the proposition that the purpose of fundamental rights was to act as a check upon legislative majoritarianism, then the phrase “legislative” was sufficient. The addition of the word “popular” makes it clear that he had in mind something beyond majoritarian laws: he was, in short, referring to that amorphous concept of “public morality.” And this becomes especially important when we recall that the Delhi High Court had specifically distinguished between “popular morality” (it had, like Justice Chandrachud, used the exact word “popular”) and “constitutional morality”, and had held that only the latter could be a ground for restricting fundamental rights.

The plurality’s rejection of Koushal, therefore (with which Justice Kaul agreed), must be a rejection of the argument that public morality can be invoked to trump the fundamental right to decisional autonomy – an argument, readers will note, that the Supreme Court has often adopted, especially in free speech cases involving book bans and hurt sentiments. And in fact, that is the only sensible way of reading the separate opinions in Puttaswamy: as we have seen, all the judgments referred repeatedly to the individual’s right to fashion her own life through control over her fundamental and intimate choices. This right would, quite literally, make no sense if it could be limited on the basis of public morals, because the whole point – as Justice Chandrachud noted expressly in his plurality, was that “privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.” (para 168)

This brings us back to Section 20 of the Immoral Traffic (Prevention) Act – and indeed, a number of other laws that restrict privacy (as well as other fundamental rights) on the amorphous, shifting terrain of “public morals”. On Puttaswamy’s fashioning of the right to privacy (and decisional autonomy) as the right not to conform when it comes to intimate decision-making (and that, as we have seen, includes the right to choose your work, food choices, sexuality, and so on), whatever other ground the State might invoke to justify restrictions, it cannot invoke public morality. A lasting contribution of Puttaswamy, therefore, is to make it clear that in our constitutional scheme, individual rights cannot be constrained on the basis of pure, brute majoritarian justifications. And this – once again – is consistent with how each of the separate opinions place the individual at the heart of the constitutional order.

That it took so long for the Supreme Court to affirm something so basic is another matter. Yet, better late than never.

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Postscript: As I pointed out in my initial post, Puttaswamy’s transformative potential can become a reality only if it is applied in concrete cases by the courts. In this context, the ongoing Akhila/Hadiya case before the Supreme Court is significant. This is a case where the High Court of Kerala annulled a marriage between an adult woman, who had converted to Islam, and an adult Muslim man, and directed the woman to be taken into the custody of her parents (where she has remained for the past three months, under police guard). Undoubtedly, the High Court had the power to annul a marriage if it found that it had not been conducted in accordance with law (although it is disputable whether it could have done so in a habeas corpus petition, which was what happened). However, it certainly had no power to order that she be confined to her father’s house. If decisional autonomy means anything at all, surely it means the right of an adult woman to make independent choices about residence and marriage. While the case has been heard on two occasions by the Supreme Court, both hearings were before the judgment in Puttaswamy; now that decisional autonomy has been unambiguously held to be part of the fundamental right to privacy, on the next hearing, the Court, I would submit, ought to set aside that part of the Kerala High Court order, and ensure that the promise of Puttaswamy is translated into reality when privacy is no longer an abstract problem, but rather, impacts the lives and fates of real human beings.