After privacy ruling, big gender reforms next?

The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution. — From the Supreme

Court judgment

The nine-judge Supreme Court bench’s ruling that declared privacy a fundamental right has far-reaching and multiple ramifications on various aspects of a citizen’s relationship with the State and interrelations between members of society. The judgment opens a floodgate of potential reforms in existing laws as well as future laws. Seen from the gender perspective, the landmark ruling has the potential to decriminalise Section 377 IPC that discriminates against LGBTQ communities. On sexual orientation and identity, the judgment clearly states: “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” It goes on to say “sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination”.

The judgment has ramifications for contentious issues like marital rape, reproductive rights of women and surrogacy. In India, marital rape is not a crime. In December 2012, after the brutal rape and murder of Jyoti Singh that shook the collective conscience of the nation, the Justice Verma Committee was constituted to recommend amendments to the criminal law for crime against women. Though recommended by the committee, marital rape was not included as a criminal offence in the Criminal Law (Amendment Act) 2013. After 2014, Union minister for women and child development Maneka Gandhi had talked of introducing a bill criminalising marital rape, but later altered her stand by saying in Parliament that marital rape can’t be applied in the Indian context for several reasons, including society’s “mindset” that treats marriage as a sacrament. Operating within a conservative patriarchal social framework, it’s easy to understand (though not justify) legislators’ reluctance to take up this controversial issue. But this ruling gives hope to thousands of women who continue to suffer silently due to the absence of a law that criminalises sexual violence and abuse within a marriage.

The existing thought process behind not criminalising marital rape is that the State should not interfere in marriage, of which sexual activities are an integral part, as it is a “private” matter between two individuals. This rationale gives supremacy to the notion of “sexual obligations” of the wife in a marriage rather than the right of the wife as an individual to protect herself from sexual abuse. However, by acknowledging privacy as a fundamental right, and as fundamental rights are conferred to an individual, the judgment underscores the autonomy of an individual. By recognising the intrinsic link between privacy and dignity, the judgment potentially grants the wife the right to maintain the privacy and dignity of her body and mind. While enunciating on different kinds of privacy, the judgment mentions “bodily privacy, which reflects the privacy of the physical body. Implicit in this is the negative freedom of being able to prevent others from violating one’s body…”.

Three writ petitions are pending in the Delhi high court regarding marital rape. In view of this historic judgment, one can hope that the rulings in these cases will be significantly different from earlier verdicts which refused to consider marital rape as a criminal act; or that the Centre would finally be persuaded to enact a progressive law on the subject.

The ruling also has implications for women’s reproductive rights and surrogacy. Like privacy, this right is not mentioned in the text of the Constitution, but is a penumbral right — one derived from rights mentioned in the text. In 2009, then Chief Justice of India K.G. Balakrishnan wrote: “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21…” Justice Balakrishnan also noted that a woman’s reproductive choices also included the right to “abstain from procreating”. The Supreme Court used the jurisprudence on reproductive rights in India and the United States to draw parallels with privacy as a penumbral right.

Linked to reproductive rights is the issue of surrogacy. The right to procreate, to have a family and the right to make reproductive choices are increasingly seen as integral component of personal autonomy. In this context, the Surrogacy (Regulation) Bill 2016, pending in Parliament, has drawn flak on several counts. It excludes single women, unmarried couples and homosexual couples from availing surrogacy. In the context of this judgment, the bill deprives these categories from reproductive rights.

It allows surrogacy only in case of married couples who are not being able to conceive within five years — a limitation on reproductive choice. By restricting choice of surrogate mother to a close relative with a child of her own, the bill provides very limited options for couples wishing to have a child through surrogacy. It also proposes to ban commercial surrogacy. While the motive behind it is to protect women from vulnerable sections of society from exploitation, strong regulations would perhaps be more suitable than a blanket ban, which would deprive a large number of people even within the very limited parameters of eligibility for surrogacy within the scope of the current bill, of their reproductive rights.

As the judgment notes, our Constitution is a living document. By declaring privacy as a fundamental right, the Supreme Court has paved the way for numerous reforms in varied fields, reaffirming the fact that our Constitution is the most potent tool for social-economic transformation, as envisaged by the founding fathers of the Constitution. The writer is chief spokesperson, Delhi Pradesh Congress Committee, and AICC national media panelist

The judgement on privacy being a fundamental right has ramifications for contentious issues like marital rape, reproductive rights of women and surrogacy. In India, marital rape is not a crime