On Thursday afternoon, Gunjan Gupta (name changed), 34, was about to leave her home in Sector 54, Gurgaon, to meet with her lawyer Sunieta Ojha when she got a call from the advocate herself. “There’s hope,” the lawyer said.
Hope was something Gupta had almost given up on. She is fighting a case against her husband who allegedly raped her. “Life became hell after the first few months of the wedding,” she says over the phone, about her four-year-old marriage. “He treated me like commodity. Sex for him meant forcing himself on the wife.” She separated from her husband two years ago. Her in-laws told her, she says, that it was the wife’s duty to remain with her husband; even the law wasn’t of any help. The police, she claims, didn’t register a criminal case against her husband and advised her to settle the family matter. “It was a losing battle,” she says.
But now there is hope. Hope is in the landmark, nine-judge Supreme Court ruling that declared privacy a fundamental right. Hope is in that grand narrative of freedom in 1,39,057 words, spread across 547 pages of six judgments.
Hope is in the lines that say, “Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable”; and “Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance”. “My right over my body is now a fundamental right. It must come under the right to privacy,” says Gupta. “Nobody, not even my husband, can violate it. A rape is a rape is a rape. Sexual intercourse without consent is a rape, whether it is with an unmarried woman or with the wife.”
Marital rape, says Ojha, violates bodily integrity and the dignity of a woman. The exception in Section 375 of the IPC — “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape” — will now be struck down, hopes Gupta.
On Monday, the Delhi High Court will hear the petition on the constitutionality of marital rape exception. Advocate Karuna Nundy says: “The verdict on privacy paves the ground to declare marital rape as unconstitutional. Though the government has been opposed to enacting a law against marital rape, as it has been doing in its submissions to the court, I don’t think it can go against the Constitution now.”
The Supreme Court bench — headed by outgoing chief justice JS Khehar and including justices DY Chandrachud, RK Agrawal, S Abdul Nazeer, J Chelameswar, SA Bobde, Rohinton F Nariman, Abhay Manohar Sapre and Sanjay Kishan Kaul — which delivered the historic right to privacy judgment elaborated on and expanded the definition of freedom, illumining it for the modern times. They said, in six separate judgments, that privacy is a fundamental right. “Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”
In this new glow of freedom, the citizen stands tall in all her glory, holding the inviolable right to wear what she wants, eat what she wants, live where she wants. The judgment underscores that privacy includes at its core “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”. It safeguards individual autonomy and recognises the ability of the individual to control vital aspects of her life. In the era of Big Data, there’s something even bigger: the right of the individual to prevent the interference of the state and non-state actors.
In the most interconnected age, the ruling offers the freedom to stay off the grid, to be left alone. Alone: that almost mystic alsounding word is rooted in a physical reality and represents the inviolable self. The bench went back in time — to England in 1603 and updated for the contemporary times what William Pitt, the Elder, had said: “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter, the rain may enter — but the King of England cannot enter — all his force dare not cross the threshold of the ruined tenement.”
There are rightly pragmatic shouts to quell the euphoria — for we have yet to see how reasonable restrictions will play out and how the judgment will be put to action. Says Nundy: “Just as the Supreme Court has come up with this bold verdict, it will be for the courts to stand firm to ensure that the spirit of this judgment doesn’t get diluted by the government in the name of reasonable restrictions to fundamental rights.” Pranesh Prakash, cofounder, Centre for Internet & Society, Bengaluru, says the judgment is “more of a retaining of status quo than a great leap forward”. “What it does is put the right to privacy on a much firmer standing than ever before.” With the privacy judgment coming two days after the Supreme Court banned the instant triple talaq or talaq-e-biddat, this week has been an unequivocal affirmation of greater freedoms.
In the expansive embrace of the right to privacy judgment are people who were shoved to the margins, denied even their basic rights on the basis of their marital status, like Gupta, or sexuality, like Jijo Kuriakose. A 34-year-old researcher, he was at his workplace in Kochi on Thursday, waiting, waiting for the judgment. And he got a ping from his partner in Bengaluru: it was a link to a report saying the bench had unanimously upheld the right to privacy. Kuriakose whooped with joy and called his friends — the news rippled across the LGBTIQ community in Kerala — and “even a couple of homophobes” to share that it was indeed a new day.
Kuriakose is one of the many living under the sword of Section 377 of the IPC that criminalises homosexuality. “My partner and I don’t want to leave the land we are born and live in but we look forward to having a favourable legal and social system. As far as Kerala is concerned, LGBTIQ people lack any support system and stay invisible at workplaces. The verdict, which mentions sexual orientation as a right, brings new hope for us,” says Kuriakose, who is the cofounder of an organisation called Queerala for the LGBTIQ community.
While a curative petition on Section 377 is pending before the Supreme Court, Justice Chandrachud said that a two-judge bench’s reasoning in Koushal was flawed and could not be accepted. “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” It’s that remarkable line, among several, that has given Kuriakose and others a reason to dream of a different tomorrow. For Kuriakose, who writes Kochi as “Qochi” and cook as “cooq”, imprinting the “Q” of queer movement in his vocabulary, courts can now be “qourts”.
A rainbow arched from Kerala to Delhi that day. Ahmed Faraz, 30, a customer analyst at Google Accenture in Gurgaon, will not forget August 24. His iPhone kept ringing and beeping all day but it was only after work that he got around to checking the missed calls and WhatsApp messages. All of them were from his partner. “Love you. God never lets us down,” read one message. Another said: “A great day for the community.” After reading the third, “Supreme Court has made right to privacy a fundamental right… 377 soon won’t be a nightmare,” he rang his partner up. “It was pleasantly shocking,” recalls Faraz.
Though he knew that the Supreme Court was slated to deliver the verdict on right to privacy, he did not think it would be a day of deliverance for them. Sitting in the office of Humsafar Trust — arguably India’s oldest LGBT organisation — at Sant Nagar, Delhi, he says, “My sexuality is now a fundamental right. Nobody can snatch it away or question it.” He stays with his partner in Delhi’s Jamia Nagar. His parents, living in the same locality, disowned him when they got to know about his sexual orientation from a Facebook post two years ago. Unhappy with himself for not coming out, Faraz had posted a message on Facebook — that he was gay and not ashamed about it — and tagged all family members. The verdict, says Faraz, will make the LBGTIQ community more assertive about their identity and sexual orientation. “It will make life a hell lot easier.” His partner, who doesn’t disclose his name, hasn’t yet come out to his family. Now, he might, bolstered by the judgment. “Why should being gay be a crime? Finally, the ghost of Section 377 would stop haunting us.”
Less than two years after Mohammed Akhlaq was lynched in Dadri on the suspicion that beef was stored in his fridge, this judgment could see petitioners pleading for the right to eat without the state interfering in their plate. As it crucially says, rights are not about majoritarian opinions: “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 guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.”
Bezwada Wilson, national convener of the Safai Karamchari Andolan and one of the petitioners who filed a PIL in 2012, challenging Aadhaar, says, “If the judges have commented on why the choice of food, dress and sexual orientation must be personal, it only goes to show how much the judges are concerned about what is happening in the country. If you clamp down on the eating of beef, saying that it hurts the sentiments of a certain section of the people, then one must not forget that those eating it also have sentiments. At the end of the day, laws are not made on the basis of sentiments. The sentiments of the majority can’t be used as an excuse to bulldoze the minority. This goes against the essence of democracy. The Supreme Court judgment helps in reinforcing this critical aspect of democracy.” (Read more in the interview, “Human beings are not numbers or data”.)
The judgment will have a bearing not just on Aadhaar — which set the ball rolling for this extraordinary verdict — but also the DNA Based Technology (Use and Regulation) Bill, 2017. However, as Supreme Court advocate-on-record Lakshmi Ramamurthy says, “Balancing the right to information and the right to privacy will be tricky, and could take some time in bringing about a more equitable relationship between the citizen and the state.”
Meanwhile, there is one person who needs this judgment more than anyone. Hadiya, the 24-year-old from Kerala, who was denied the freedom to marry and practise a religion and was put under the custody of her parents by the high court. The Supreme Court, instead of freeing her, put the NIA on the case. With this verdict, the citizen wrests back her agency.
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