New Delhi: On 24 August, 2017, a nine-judge bench of the Supreme Court created history when it unanimously recognised a fundamental right to privacy of every Indian guaranteed by the Constitution. The judgment was pronounced by a bench comprising then Chief Justice of India J.S. Khehar, along with Justices J. Chelameswar, S.A Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, D.Y. Chandrachud, S.K. Kaul and S. Abdul Nazeer.
It was born out of the challenges to the constitutional validity of the Aadhaar framework. In his petition, retired Karnataka high court judge Justice K.S. Puttaswamy had challenged the validity of Aadhaar, a unique 12-digit identification number that was first introduced in 2009. The framework, he said, violated the fundamental right to privacy.
The petition prompted the SC to set up the nine-judge bench to look into the correctness of past judgments, which had ruled that privacy was not a fundamental right.
The judgment upholding right to privacy was hailed, not only for having placed the ‘individual’ at the heart of the issue but also as having the potential to transform the landscape of women’s entitlements under the law.
In the six years since, the judgment has since been cited in at least 358 judgments — 64 judgments by the Supreme Court and 294 judgments by high courts, according to legal database Manupatra.
The most prominent impact of the right to privacy judgment was felt when the Supreme Court struck down Section 377 of the Indian Penal Code to the extent that it criminalised same-sex relations between consenting adults. But it wasn’t just this — the ruling has left its footprints in several judgments passed by the Supreme Court as well as various high courts across the country — decriminalising adultery and protecting transgender persons’ rights, to protecting people against arbitrary surveillance through phone tapping.
Here’s a look at the impact that the landmark ruling had.
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Puttaswamy judgment & Section 377
The litigation around Section 377 began back in 2001, when Delhi-based NGO Naz Foundation filed a petition in the Delhi High Court, challenging a provision of the Indian Penal Code that made “intercourse against the order of nature” a penal offence.
In 2009, the Delhi High Court decriminalised same-sex relations between consenting adults, but in 2013, the Supreme Court overturned this ruling, leading to several curative petitions against it.
Two developments happened while these curative petitions were pending. In 2016, five individuals from the LGBTQ community filed a fresh petition for scrapping Section 377, and in 2017, the Supreme Court referred to the 2013 ruling in its Puttaswamy judgment, observing that “sexual orientation is an essential attribute of privacy”.
Justice Chandrachud, now the CJI, was a particularly vociferous critic of the 2013 ruling. In his ruling, he said the court did not agree with “the manner in which Koushal (2013 judgment) dealt with the privacy — dignity based claims of LGBT persons on this aspect”.
While the Supreme Court didn’t authoritatively comment on Section 377 in the Puttaswamy judgment, noting that the decision on that case was still pending, its observations turned the tide.
In January 2018, the apex court agreed to revisit its 2013 ruling, and in September that year, it read down Section 377, relying heavily on the Puttaswamy ruling and giving due regard to the “elevated right to privacy”.
The court noted: “After the nine-judge bench decision in Puttaswamy, the challenge to the vires of Section 377 IPC has been stronger than ever”.
It then ruled that “Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small”.
The court said that as sexual orientation is an essential and innate facet of privacy, the right to privacy “takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution”.
‘Feminist critique’
The Puttaswamy ruling also contributed significantly to the Supreme Court’s verdict decriminalising adultery. In a separate section titled “feminist critique”, the nine-judge bench decision addressed concerns by feminist writers over the use of privacy as a veneer for patriarchal domination and abuse of women. In the section, the court had observed that privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.
In 2018, a five judge bench relied on this “feminist critique” to strike down Section 497 of the IPC, which made it an offence for a man to have sexual intercourse with a married woman, without the husband’s consent. In that ruling, the court asserted that “familial structures cannot be regarded as private spaces where constitutional rights are violated”.
Among other things, the court observed that the provision treats the woman “as the property of man and totally subservient to the will of the master”.
The impact of the Puttaswamy ruling also trickled down to several high courts across the country. For instance, the Kerala High Court made headlines in June this year when it discharged a women’s rights activist in a Protection of Children from Sexual Offences (POCSO) case involving her two kids.
In its ruling, the court relied on the Puttaswamy judgment, which had declared that bodily autonomy is an integral part of the right to privacy. Calling out patriarchal stereotypes concerning a woman’s naked body, the court asserted that the right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy.
Trans rights, phone tapping
The 2017 ruling has impacted several other rulings since. In July this year, two high courts issued landmark orders that relied on the principles propounded or affirmed in the Puttaswamy judgment.
On 4 July, the Rajasthan High Court quashed three phone tapping orders issued by the state’s home department, quoting the Puttaswamy judgment, which, in turn, had affirmed another Supreme Court judgment that construed telephone conversations to be an “important ingredient of privacy”.
In the ruling, the court said that the orders had not complied with the procedural safeguards provided under the law and said they must be strictly followed.
And On 6 July, the Telangana High Court relied on the Puttaswamy judgment to strike down Telangana Eunuchs Act of 1919 — which required transgender individuals to register with authorities — as “unconstitutional”. The law mandated sharing of information including their places of residence, for they were “reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences or abetting… said offences”.
The court called the act an intrusion into the private sphere of transgender people “as well as an assault on their dignity”.
“Following the law laid down by the Supreme Court in NALSA and in subsequent judgments in Puttaswamy and Navtej Singh Johar, there can be no iota of doubt that such an enactment is anathema to our constitutional philosophy as explained by the Supreme Court in the above judgments,” the court said.
Puttaswamy ruling & marital rape exception
Last year, both judges of the Delhi High Court who delivered a split verdict on petitions challenging the constitutional validity of the marital rape exception examined arguments over ‘privacy’.
The court was hearing petitions challenging the exception that exempts a husband from being prosecuted for having forcible sexual intercourse with his wife.
Justice Shakdher, who wanted the exception struck down, once again went back to the feminist critique in the Puttaswamy judgment, pointing out that gender violence is often treated as a matter concerning family honor, and asserted that privacy must not be a cover for concealing or asserting patriarchal mindsets.
He rejected the contention that prosecution of the husband for a rape offence would result in invading the private space of a married couple, calling it “nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as ‘sacrosanct’ space”.
However, Justice C. Hari Shankar upheld the exception, emphasising that sex between a husband and wife was “sacred” and pointing out that the exception “advises against unwarranted judicial, or executive, incursions into the privacy of the marital bedroom”.
In doing so, he rejected the contention that the marital rape exception unconstitutionally accords preference, to the privacy of the marital institution, over the privacy of the individuals involved. He opined that the exception does not compromise, in any manner, the “privacy of the individuals involved”.
Both the judges granted a certificate of leave to appeal to the Supreme Court directly, observing that the case raises a “substantial question of law” which requires a decision from the apex court. That issue is still pending before the Supreme Court and would necessarily involve the apex court looking into the application of the privacy verdict.
(Edited by Uttara Ramaswamy)