SC judgment on privacy spoke about women’s rights. But how effective will it be on the ground?

The decision of the Supreme Court to unanimously uphold a fundamental right to privacy is majorly being seen in terms of Aadhaar data and sexual orientation. However, the judgment goes much beyond that.

In a monumental judgment, passed by a nine-judge bench that had Chief Justice Khehar and Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, held that right to privacy is a guaranteed fundamental right in terms of women’s liberty as well.

The judges recognised that privacy extends to the rights for women which aren’t always absolute in India.

The 547-page judgment talks about the safety for women, the right to bear a child or abort a pregnancy, the right to work, the right to choose work, sexual orientation of women – stating that all of these issues fall in the realm of the fundamental right to privacy for women.

What the judges had to say

Chelameswar wrote in in his remarks –

“A woman’s freedom of choice whether to bear a child or abort her pregnancy is an area which falls in the realm of privacy. Their freedom to choose either to work or not and the freedom to choose the nature of the work are areas of private decision-making process. Their right to travel freely within the country or go abroad is an area within the right of privacy.”

“It is privacy which is a powerful guarantee of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals,” CJI Khehar and Justices RK Agrawal, DY Chandrachud and SA Nazeer added.

Chandrachud also noted that the 2014 judgement which read – “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” – was not reason enough to deny a community their right to privacy.

“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. 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. Equal protection demands protection of the identity of every individual without discrimination,” he wrote.

“This is not to suggest that solitude is always essential to privacy. Nor is the right to privacy lost when a woman moves about in public. Privacy must also mean the effective guarantee of a zone of internal freedom in which to think. The disconcerting effect of having another peer over one’s shoulder while reading or writing explains why individuals would choose to retain their privacy even in public,” Justice SA Bobde added.

This progressive judgment, while it seems ideal, is far from the truth in reality. How the court’s judgment will translate into effective rights of women is something that many have questioned.

The other side

Catch spoke to a few women’s right activists about the judgment that guarantees privacy as a fundamental right and how it can affect the rights of women.

“The judgment is a progressive one for women. The Supreme Court recognises that the right to procreation or abortion, the right to work, the right to safety is one that must be absolute for women. They also recognise how far from reality it actually is. I do not know how the Supreme Court plans to enforce this judgment but it is monumental in the sense of that the highest judicial body in the country recognises that these are fundamental rights of women and all women must know that. Any judicial process should work in a women’s favour in case these rights of hers are violated in any way by any one,” said Mary John from the Centre for Women’s Developmental Studies.

John also added, “The judgment of the right to privacy in terms of sexual orientation is also significant for the LGBT community that includes women. It will certainly give a woman the confidence of accepting her sexual orientation – lesbian, transgender or bisexual – and know that the state cannot invade her personal space and choice.”

Women’s right activist Kavita Krishnan feels that the judgment for women’s rights isn’t one that hasn’t been seen before.

“The Constitution of India has always upheld the absolute rights of women. It has always been progressive for women. It is the violation of these fundamental rights of women that is the matter of concern. The judgment talks of the right to bear a child, how many cases of marital rape go without conviction? Even the right to abortion is subjective in India. A woman is only legally allowed to abort a foetus till 20 weeks post which the woman has to seek permission from the courts. Is that an absolute right? The judgment spoke of safety for women in public spaces. We know how many people are convicted for harassment of women in public spaces. The judgment talks of the right to work and choosing the nature of work. How many elements deter the woman from making that choice for herself? These are mere words unless these rights are enforced,” she said.