Right to Privacy Judgment – II: Privacy, The Individual, And The Public/Private Divide

Privacy presupposes the existence of a private realm. The struggle for privacy has been, among other things, a struggle between rival understandings of how to define the private realm. In the early judgments of the United States Supreme Court, privacy was understood as a spatial concept, summed up in the old aphorism, “a man’s house is his castle.” Gradually, that concept evolved to include relationships and institutions such as marriage and the family: for example, the US Supreme Court struck down a ban on contraceptives on the basis that it amounted to an illegal interference with the marital relationship, and the Irish Supreme Court struck down a similar ban on the basis that it interfered with the right to family life. Still later, privacy came to be understood as the individual’s right to make private (or intimate) decisions and choices, such as her choice of sexual partner, her choice to abort her foetus, and so on.

The judgment of the Supreme Court in Puttaswamy reflects this gradual evolution of the understanding of privacy over time. Although the formulations across the six separate opinions are slightly different, there are wide areas of overlap, reflecting a general consensus among the nine judges – a consensus that reflects modern-day thinking about privacy. Justice Chelameswar held that privacy has three facets – “repose, sanctuary, and intimate decision.” (para 36) His examples ranged across bodily integrity (corporal punishment), control over personal information (data collection and telephone tapping) and intimate choices (euthanasia and abortion) (paras 38 – 40). Justice Bobde focused on the individual’s right to seclusion, both physical and mental (para 31). Justice Nariman – like Justice Chelameswar – explicitly framed the private realm around the body (“the right to move freely“), the mind (control over the dissemination of personal information), and “autonomy over fundamentalpersonal choices” (para 81). Justice Kaul’s opinion, which was centred around privacy and technology, placed great importance upon the individual’s “right to control dissemination of personal information.” (para 53) In the most elaborate opinion, Justice Chandrachud framed it in the following fashion:

“Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. 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. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” (para 142)

There is one crucial feature about each of these (overlapping) formulations: they place the individual at the heart of privacy. Even Justice Chandrachud – who was the only one to use the spatial formulation – was careful in his choice of words, speaking not about spaces (such as the home) per se, but the “creation of private spaces.” And the act of creation, of course, is an act of an individual, or a group of individuals.

The importance of this might not be immediately visible, and therefore, I want to take us back for a moment to the original, canonical formulation of the right to privacy in Gobind vs State of MP:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

Consider each of these words. Home. Family. Marriage. Motherhood. Procreation. Child rearing. What strikes you about them is that they refer either to spaces (home), institutions (family, marriage) or to social functions (motherhood, procreation, child-rearing). The individual has virtually dropped out of the picture, and privacy has attached itself either to physical or functional space, or to institutions and relationships that are made up of individuals, but go far beyond ordinary contractual relationships.

This framing matters immensely, because there has been a long-standing and powerful feminist critique of privacy in its spatial and institutional forms. By “walling off” the private sphere – say, the home or the marriage – from State intervention, unequal power relationships within these spaces and institutions remain untouched. If constitutional norms stop at the (physical) threshold of the home or the (metaphorical) threshold of the family, then what of all the deep, structural inequalities and imbalances of power that exist within those spaces? As Martha Nussbaum sums up the argument, in an essay titled Is Privacy Bad for Women:

“… appeals to the alleged privacy of the home have been used to defend the exemption of marital rape from sexual assault laws, and to discourage state interference with domestic violence or child abuse. It is not that, in principle, people don’t at times believe that coercion voids the presumption of non-interference. But, as [Catherine] MacKinnon says, “the problem is getting anything private to be perceived as coercive.” In the marital home, there is a presumption of consent. As MacKinnon puts it: it is not the woman’s privacy that is being protected here, it is the man’s privacy. Recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.”

Bertha Wilson, a former judge at the Supreme Court of Canada, puts the point even more bluntly, writing that “… family privacy was also designed for the preservation of male authority and superiority within the home…The problem with privacy law has been its tendency to assume, not only that there exists a commonality of interest between family members notwithstanding the inequalities of power, status and independence that exist among them, but also, following from that, that the protection and promotion of the interests of family members can be safely reposed in the male head of the household.”

What this suggests is that while at first glance, spatial, relational and decisional privacy are complementary facets of an overarching privacy right, there are circumstances in which they can clash. And indeed, Indian constitutional history provides us with an excellent example of this clash. Section 9 of the Hindu Marriage Act, titled restitution of conjugal rights, provides that:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

The Andhra Pradesh High Court, in a case called T. Sareetha vs Venkatasubbaiah, struck down this section as unconstitutional, on the basis that it amounted to State interference with a woman’s private decision whether or not to engage in sexual intercourse, and whether or not to carry a child. A few months later, the Delhi High Court disagreed, noting, among other things, that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond.”

One year later, the Supreme Court agreed with the Delhi High Court and upheld the section on the basis that “it serves a social purpose as an aid to the prevention of break-up of marriage.”

This trilogy of cases paints a stark picture of the clash. The Andhra Pradesh High Court understood privacy as the individual’s right to make uncoerced private choices. The Delhi High Court understood privacy to attach itself to the “home” and the “married life”, but blind to whatever happened within the home or the married life. And the Supreme Court privileged the preservation of the institution of marriage by upholding coercive action against the individual participants of the marriage.

I have discussed Sareetha on this blog before and in a separate academic article elsewhere, and will not rehearse the arguments here. What is important to note, however, is that when Gobind spoke of the intimacies of the “home” and the “married life”, it left open the question of what conception of privacy – spatial, relational, or individual-decisional – might prevail when a conflict arose. And it was that question that was decisively answered by the Supreme Court, with all six judgments locating the right to privacy within the individual. And it was Justice Chandrachud who went a step further, and outlined the clash, as well as its resolution. In a sub-section titled “the feminist critique”, he wrote that:

“Many writers on feminism express concern over the use of privacy as a veneer for patriarchal domination and abuse of women. Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of “family honour” resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and the perception that it has cause an affront to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets. Catherine MacKinnon in a 1989 publication titled ‘Towards a Feminist Theory of the State’ adverts to the dangers of privacy when it is used to cover up physical harm done to women by perpetrating their subjection. Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.“(para 140)

In other words, Justice Chandrachud’s point was that any formulation of the right to privacy must take into account the fact that “privacy” – depending on how it is articulated – can both be a tool for the emancipation of women, as well as a weapon of oppression. And as we have seen, each of the six opinions frame “privacy” in a manner that is keenly cognisant of this reality. Gone are the concepts of space, relations, or institutions – to be replaced by the individual, who has the right to create her spaces of solitude, control her personal information, and make her personal decisions. Even though, at various points of his judgment, Justice Chandrachud did go on to mention the family, child-bearing and procreation, his observations in para 140, as well as his formulation of the right to privacy, make it clear that these relationships or institutions carry normative value only because, and insofar as, they are the result of uncoerced, free, individual choice.

Interestingly, this framing of the right to privacy is not only morally attractive, but it is also constitutionally correct. At the heart of the “spatial vision” of privacy is the American Fourth Amendment, that protects the “houses, papers, and effects” of people from searches and seizures. As counsel after counsel on the side of the State reminded the Supreme Court this July, the framers of the Constitution discussed including a clause similar to the Fourth Amendment, and then rejected it. Nor does the Indian Constitution place the “family” at its heart, like the Irish Constitution does – in fact, as we have discussed before, Ambedkar specifically pointed out during the Constituent Assembly Debates that it was the individual who was the basic unit of the Constitution . Consequently, there was no warrant for the Supreme Court to ground a right to privacy in spaces (as the US Supreme Court continues to do) or in relationships or institutions (in fact, more than one judge referred to the Constituent Assembly Debates, and points out that privacy was broader than the narrow, space-oriented concept that the framers had rejected).

What remains? The individual – the Constitution’s basic unit, and – in the Supreme Court’s judgment – the only bearer of the right to privacy.

What might this mean for the future? To start with, surely the judgment in Sareetha requires a re-look (Justice Chelameswar, in fact, hinted as much when he notes that status of “personal association” as an aspect of the right to privacy remained “doubtful”, and cited Sareetha) (para 40). More importantly, however, the Delhi High Court is presently hearing a constitutional challenge to the marital rape exception. It is here that we will see the clear clash between the individual privacy rights to bodily integrity, dignity, and decisional autonomy on the one hand, and the normative claims of the institution of marriage on the other. Will the Delhi High Court, then, become the first Court to apply the Supreme Court’s powerful new articulation of the fundamental right to privacy? Time will tell.

In 1971, Herbert Marcuse wrote, in An Essay on Liberation, that “self-determination begins at home – and that is with every I, and the We whom the I chooses.” Last week, the Supreme Court endorsed that proposition – so deeply contested for all these years, and yet, at the end of the day, so simple, and so basic.