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Right to privacy: Judiciary needs to be consistent when deciding who deserves this fundamental right

A nine-judge bench of the Supreme Court, in Justice KS Puttaswamy (RETD) vs Union of India and Ors (WP (C) 494/2012) unanimously upheld the right to privacy as a fundamental right, stating that privacy is essential to life and personal liberty, and is secured by the framework of rights under the Constitution. It states that the right to privacy, like other fundamental rights, can only be transgressed upon if there is pervasive and reasonable state interest. This unanimous decision on privacy overrules two famous cases — MP Sharma vs Satish Chandraand Kharak Singh vs State of Punjab with regard to their observations on privacy and has accepted Samuel Warren and Louis Brandeis’ definition of privacy from the 1890 Harvard Law Journal. They defined privacy as the ‘right to be left alone’.

The bench also stated that it disagreed with the Supreme Court’s decision in Naz Foundation, that upheld the constitutional validity of Section 377 of the Indian Penal Code. Justice Chandrachud stated with clarity: “[…] This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” This view of the bench has been heralded as a progressive and significant part of the judgment, but this brings us to a distressing point:

Is the right to privacy the same for everyone or is it a varied right, depending on the specific characteristic of the class, community or individual who is fighting for such right?

The reason why we must force ourselves to consider this is because only earlier this month, a bench of the Supreme Court, comprising former Chief Justice Khehar and Justice Chandrachud, was also examining the Hadiya case, wherein the Kerala High Court nullified the marriage of an adult woman, who converted to Islam, with a Muslim man, on account of a habeas corpus petition filed by her father. Earlier this month, the same bench had ordered a National Investigation Agency (NIA) probe to investigate if a larger conspiracy exists where terror groups proselytise Hindu women in order to radicalise them. The bench had not yet heard Hadiya’s side of the story, and proceeds in the case with a deep sense of misguided protectionism. The Kerala High Court has stated that “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways…” and has assumed a parens patriaejurisdiction over her. The Supreme Court bench has not offered a different view on the matter; in fact, throughout the order, it refers to Akhila (Hadiya) as “the girl” or “the concerned girl”. The fact that it still has not summoned her to the court, and has decided about her fate without consulting her shows that the judiciary is not particularly bothered about her side of the matter.

This, therefore, begs the question of the right to privacy in a marriage of two consenting adults. Both Chief Justice Khehar as well as Justice Chandrachud are effectively for the right of the LGBTQI community to be left alone — that there was a right to personal liberty, dignity and privacy that protected the community’s choices within the four walls of the house. However, in the case of Hadiya, why don’t they decide on the basis of the same rationale? Hadiya is an adult woman, who converted to another religion on her own accord and took to an interfaith marriage with a man she subsequently fell in love with. There is no larger political narrative in the decisions she made, and therefore, must be accorded the same right to privacy that the Supreme Court believes is a fundamental right.

By ignoring Hadiya and her husband’s zone of privacy and handing over the investigation to the NIA probe, the Supreme Court devalues Hadiya’s freedom of choices, her agency and her autonomy as a woman. By invalidating her marriage to Shafin Jahan, the judiciary opines that a woman deserves no privacy to make her own decisions. By handing her over to her father’s custody, the judiciary indicates that it has no duty to respect the constitutional values embodied in the dignity and autonomy of an adult woman. These are dangerous precedents. The curtailing of the right to privacy of Hadiya by the courts and nullifying her marriage on account of ‘love jihad’ is problematic. It indicates that one of the highest institutions of the country, the judiciary, does not believe in the constitutional morality of the right to privacy when it comes to women.

The judiciary’s present position is that the LGBTQI community deserves the right to privacy and dignity, while Hadiya and Jahan’s marriage does not. It perhaps believes that community rights are more significant than individual rights — which again sends out a wrong message to the rest of the country. At this point, the Supreme Court should consider the narrative of privacy and dignity is Hadiya’s matter, before it further succumbs to patriarchal values.

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Senior editor with Himsamachar

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