This article is written by Rangita Chowdhury, of Symbiosis Law School, Noida. It talks about privacy laws in India with a special focus on how it affects women.
Table of Contents
Introduction
We generally talk about privacy in such a manner that as if everyone benefits equally from the same privacy laws and we are all equal. When we do this, it shows how normalised our privilege is to us, that we fail to ignore how the invasion of privacy affects people of different classes and gender very differently. We do not take into account how patriarchy has played a role in setting up such unequal norms. Privacy should be a choice. But this is far from true. For most women, particularly those living under poverty, ignorance and male subjugation, privacy is still a dream unrealised.
Objective of right to privacy
Black’s Law Dictionary defines privacy as “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned”.
Right to privacy has always been considered an important human right, it is part of many international human rights laws and conventions, the majority of the countries in the world give it some sort of constitutional validity.
The objective of right to privacy is to protect citizens from the arbitrary intervention of the state authorities and other actors. It helps create boundaries and preserve our other legal rights. Everyone has the right to live their life according to their wants and wishes without interference. The concept of privacy was not given much importance when the constitution was being drafted. It took a lot of time and effort by different groups and individuals to give privacy the status it has attained today.
The Supreme Court in 2017 in the case of Justice K.S. Puttaswamy vs. the Union of India gave privacy the status of a fundamental right under Article 21 of right to life and personal liberty as guaranteed under part III of the constitution. Article 21 has been given a very broad distinction by the constitution of our country. A lot of rights have found authorization under it.
Privacy matters of women and sexual minorities
Privacy is a central part of many women’s rights movements and probably the most important for sexual minorities. Women and sexual minorities suffer indiscriminately in today’s society concerning the protection of their privacy.
The vast array of changes brought about by the digital age also make women more vulnerable. There is a general disregard for privacy when it concerns women. A few common examples will be – a recharge outlet distributing phone numbers of women, someone leaking sensitive pictures online without the woman’s consent, etc.
Sexual minorities have been subjected to perhaps the greatest of injustice. Even though our constitution-makers wanted to safeguard the rights of all and make India an inclusive republic, the Indian judiciary has repeatedly failed, when it came to safeguarding the rights of sexual minorities – the LGBTQ+ community.
“Sexual acts against the order of nature” were criminalised by the Indian Penal Code 1860 under Section 377. The courts, on many occasions, upheld the validity of this legislation and refused to accept same-sex relationships. The queer community was degraded, harassed, and criminalised at every step until the Supreme Court struck down this very barbaric law in 2018 in the landmark judgement of ‘Navtej Singh Johar vs. The Union of India’ (2018)’.
The nine-judge bench held that the government had no right to intervene in the lives of individuals based on their sexual intent. This is against the right to privacy and violates it grossly. The article denied the sexual minorities’ dignity, privacy, and criminalised them. Even though homosexuals now have the legal right to maintain relationships with anyone they want to and are entitled to privacy in their everyday lives, they still face a lot of discrimination and harassment. However, things have started changing, people are now a lot more vocal about the rights of the homosexual community.
Analysis of bodily assault, sexual integrity and privacy
Bodily assault against women is very common all over the world. Among bodily assault, rape and sexual assault are the most common.
Rape is the fourth most common crime in India. The National Crime Records Bureau estimates have shown that in 2018 alone, 33,356 rape cases were reported across India and out of these, nearly 94% were committed by someone who was known to the victim. Consensual sex on the false promise of marriage has also been reported in very large numbers.
Dowry death (Section 304B IPC), Assault on Woman with Intent to Outrage Her Modesty (Section 354 IPC) Sexual Harassment (Section 354A IPC) Voyeurism (Section 354D IPC), Insult to the Modesty of women (Section 509 IPC) Cruelty by the husband or his relatives and other forms of bodily assault and violence against women are also very common crimes against women in India.
An analysis by Live Mint shows that about 99.1% of sexual violence cases are not reported, and in most such instances, the wrongdoer is the husband of the victim. Strikingly, the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. The analysis also shows that only about 15% of sexual violence committed by others is reported by the victim.
Factors other than low levels of faith in the law enforcement agencies, low conviction rates, social taboo, harassment from family members, economic considerations are also responsible for such low reporting. Privacy is an important issue.
Incidences of sex and other forms of violence against women committed by a member of the family, such as the husband of the victim, mostly go unreported since the patriarchal family considers that publicity of the event will destroy the privacy of the family. The victim, without any economic or social independence, is not in a position to come out with the truth. IPC also does not criminalize rape, if committed by a husband against a women who are above 15 years of age.
Traditional Indian society considers that sexual integrity of women to her husband is sacrosanct and once married she becomes property of her husband forever and the latter is conveniently entitled to commit any forceful sexual act, like rape, torture, bodily assault, etc. on her against her will. This Indian belief of sexual integrity, therefore, plays on the psyche of the victim and the accused both. It is considered as a private affair within the family and the victim too, for various reasons, as forced to accept this as a reality.
Assault against women before marriage are always kept as a secret. Most events go unreported. There is a dual reason. The fear that the future life of the victim will be endangered forever and she will never find a suitable groom is one reason. Another important reason is that the health information of the victim is not kept secret. Privacy is not maintained. The long-drawn legal battles, where uncomfortable questions are asked by the defence lawyers relating to how the incident happened, which parts of the body were harmed, and so on, also act as a strong deterrent. Publicity by the media, gossip by neighbours and strangers, alike and disregard of the society (which often considers women as equally responsible) are also reasons why such incidents are kept within the confines of the home.
Coming to sexual integrity, the same sex-relation is still a strong taboo in Indian society. Though The Supreme Court has decriminalized section 377 of IPC, declaring that sexual activity between identical sexes is a private matter, Indian society still considers it to be unethical, immoral, and even a sin. The society believes that a woman should be sexually oriented only towards her husband throughout her life. She should not be inclined to any other male. In this context, most Indians find it hard to accept same-sex relations as a private affair or a legally accepted practice. People indulging in same-sex relations are hounded and labelled as criminals. They are considered as social outcasts. That two individuals belonging to the same sex have every right to indulge in a sexual relationship as a matter of their own private choice, is never accepted by the Indian psyche. This results in such sexual behaviours remaining as private affairs throughout the life of the partners.
Right to privacy is a vital ingredient for the proper development of an individual’s personality and identity. It is a component of his innate dignity and helps her to enjoy her other human rights and therefore should not be bound by restrictions. It is a necessary precondition for the protection of fundamental values including liberty, dignity, equality, and freedom from government interference and excesses. It entitles a woman to define her sexual integrity and her sexual orientation, including that of choosing her sex-partner. It also gives her the inherent right to expect that all information related to any bodily assault committed on her, if reported to the police, would be carefully guarded as a private affair and does not become the topic of public discussion.
Thus, though Indian Law gives a lot of protection to women victims of bodily assault, lack of judicious and careful implementation of the law and lackadaisical attitude of the Government machinery do not reassure the Indian women to voice her injustice before the law enforcing agencies. Socio-economic conditions of our patriarchal society also force her to remain silent.
Legal status of marital rape in India
Section 375 of the IPC defines rape and the circumstances under which it would constitute rape. However, exception 2 of the section, says sexual intercourse between husband-wife, if the wife is over 15 years of age is not rape even if the wife had no consent.
In short, India is one of the thirty-six countries in the world that do not criminalise marital rape. India still has to criminalise unwilling sexual conduct between husband and wife. The courts have been flooded with petitions and writs encouraging the government to ban marital rape but the Supreme Court has not done much except narrowing down the scope of marital rape in India. In the landmark judgement of Independent Thought vs. Union of India (2017) the Supreme court said that marital law exemption will now not cover cases below 18 years of age too. The petitioner had argued that an unconstitutional distinction was being made between wives of 15 years and 18 years. The court realised this and came to the judgement based on three reasons-
i) The government has enacted statutes like the Protection of Children from Sexual Offences Act (POCSO) which criminalise sexual activity with children below the age of 18. This was done to save them from emotional and sexual damage if they are not sexually mature yet. Now, this conflicts with section 375 exception 2 so the government pretty much declares that if someone below 18 is married then they’ll automatically gain sexual maturity or the damage done to them can be ignored because they are married. The court wanted to resolve this conflict and thus extended the exception of rape below the age of 18.
ii) The court was of the view that the exception being based on marital status was not correct because it was not taking into account the numerous cases of harm caused by child marriages. Nonconsensual sex was punished under many other statutes like Section 6 of the POCSO Act. It violated ideals of equality as someone married under the age of 18 could complain under any other statute for sexual offences but not of rape.
iii) It violated the right to life of children in the age group of 15-18.
Women were not given separate legal status in the 1860s when the IPC was drafted. They were considered more or less an extension of their husband and were not given many rights. They could not file a complaint against anyone in a court of law and this largely influenced the exemption clause. The patriarchal norms were more prevalent back then, which did not consider women as equal to men.
Times have changed but the systematic patriarchy and in-built misogyny continue to exist, marital rape being one of its prime examples. Rape is often considered a power play, people who are guilty of raping individuals do it mostly to establish a power structure, not because of sexual intent. Men still believe they can dominate women and have control over their bodies because the law backs them up in this aspect.
A few legislations have been enacted till now, which protect women against sexual violence and harassment like The Protection of Women from Domestic Violence Act (2005) and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (2013). If a woman wants to complain about sexual violence from a partner or workplace she can take recourse under these acts. Not criminalising marital rape violates Article 14 and 21 of the constitution. When Married women are denied protection against sexual assault, this discriminates against them and violates Article 14. Right to life and personal liberty also includes the right to live with dignity, which is snatched from a woman when they are subjected to sexual terror at home regularly.
Why is the right to privacy a fundamental right
On 24 August 2017, the Supreme Court of India in a historic judgement put to rest the long-standing confusion as to whether the Right to Privacy is a Fundamental Right.
In the case of Justice K.S.Puttaswamy v. Union Of India (2017), a nine-judge bench of the apex court declared the right to privacy as a fundamental right, stating that is a right protected under part III of the Indian Constitution and naturally flows from the fundamental right to life and liberty.
The judgement was in response to the official position of the Union Government about issues connected with the nation’s identity programme – Aadhaar. The court turned down the contention of the Government that the Indian Constitution does not include within it a fundamental right to privacy. While doing so, the Court turned down several earlier judgements of the Supreme Court, such as MP Sharma v. Satish Chandra (1954) and Kharak Singh vs. State of Uttar Pradesh (1962). This landmark judgement is likely to have far repercussions across both State and non-State actors and we can expect a comprehensive law on privacy soon.
Right to privacy – a fundamental right
- The right does not require separate articulation as it is an integral part of Article 14 (right to equality), Article 19 (right to freedom), and Article 21 (right to life and personal liberty). The right to privacy encompasses all these fundamental principles. It is a natural right. Every individual has the right to his own life and has the liberty to perform acts within constitutional confines. Thus, the right to privacy subsists as an integral part of the right to life and liberty.
- It is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes. It protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc. Therefore, any action by the State that results in an infringement of the right to privacy is subject to judicial review.
- Life and personal liberty are essential components of a dignified human existence. Privacy also is as much essential for the same. It is the constitutional core of human dignity. Thus, privacy forms an integral part of the right to life and personal liberty.
- Privacy gives us freedom and independence. It gives us freedom from being scrutinized or judged by others and from prejudice and pressure of others. It allows us not to be judged by others if we do not want to. Thus, privacy, having a moral aspect, is a fundamental component of our right to life and personal liberty and hence a moral, human, and a fundamental right.
- Similarly, privacy is the foundation of our intimacies, our family, marriage, procreation, and sexual orientations. Privacy gives us the right to be left alone. Personal choices are integral to personal autonomy and make us private individuals. Privacy respects plurality and heterogeneity. It is also a vital aspect of our culture and our thought processes. Though we are social animals, the right to privacy exists even in a public place. Thus, privacy protects our liberty and is fundamental to our existence.
- We must appreciate that life and personal liberty were not created by our constitution but were recognized by the constitution as intrinsic parts of human existence. Hence privacy, which is an integral part of dignified human existence, is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
- If we do not consider privacy as a fundamental right, then we stand the risk of our personal lives being dragged in public and we also stand the risk of state interference in our private existence. This gives the state an undue advantage to meddle in our lives and even harass us in the name of public interest. Thus, without privacy, the right to life and the right to personal liberty is jeopardized.
A comparison of status in India to other countries
Germany
Germany is one of the strictest countries in the world when it comes to the protection of data and privacy. This stems from the awful experiences the country had under the Nazi regime, being under constant surveillance. The country has ensured that its privacy laws are always updated according to societal and technological necessities. They are very stern about how much control the administration can have over the privacy of its citizens. Due to these very strict laws, social media websites like Facebook and Google have had a difficult time functioning in them because they mainly run on freedom of the internet which involves invasion of privacy.
United States
The USA has enacted privacy laws for different issues like child rights, banking, and finance, industry-related, health-related and the closest it comes to having a comprehensive privacy law in the Privacy Act of 1974. It protects the citizens from arbitrary federal intervention and also protects their social security numbers from the federal agencies except in cases of taxes and child issues related to child support. The constitution of the USA does not explicitly mention privacy as a right in it but the courts have on many occasions upheld the right on their discretion.
Canada
Canada has two federal privacy laws, the Privacy Act (1983) and the Personal Information Protection and Electronic Documents Act (1983). The former applies to the regulation of the government’s control and use of personal information of its citizens. This Act, however, does apply to political parties or its representatives. The latter regulates the information private sector organizations collect and disclose. The provincial privacy laws differ from these laws. Canada also has sector-specific privacy laws.
European Union
European Convention on Human Rights (1953) provides the right to protection of private life and family and there shall be no interference by the government except when it is by the law. The Charter of Fundamental Rights of the European Union (2000) guarantees the citizens of European Union protection of their personal data and its regulation under Article 8. It had also previously adopted the Data Protection Directive (1995) which regulates data protection within the EU.
Pakistan
Pakistan is one of the lesser-known countries having a liberal government so privacy laws in the country are different than the other countries. The Constitution of the Islamic Republic of Pakistan in Article 14(1) states the dignity and privacy of man at home should be inviolable. It also introduced a Data Protection law in 2018, whose legislative process is still going on. Pakistan has one of the most extensive citizen registration regimes in the world now, however, it has been overtaken by Aadhar in India. This is run by the National Database and Registration Authority. The country has been part of many scandals relating to its interception policies, some of which are almost unlawful, according to media and investigative sources. Pakistan is also part of many regional and international conventions and treaties that advocate the protection of privacy as a natural human right.
Critical analysis
The Supreme Court judgement in K.S Puttaswamy v Union of India (2017), has offered us new insights and thoughts to our understanding of privacy and how it affects women. The judgement, while declaring privacy as a fundamental right, has held that it includes the “ right to be let alone”. It protects a person’s autonomy by preserving his/her bodily integrity and autonomous decision-making capacity.
Going by this judgement, we can conclude that it should allow a woman to make her own decisions and exercise her own choices. She should be entitled to express her feelings and orientations freely and preserve her thoughts, expression, ideas, and ideologies. She should also have the right to protest any wrongdoing committed against her. Ideally, this should be the case as privacy is now a fundamental right and it should apply equally to all individuals irrespective of sex.
The judgement also implies that all decisions taken within the confines of the home, which is a private place should be free from state interference and intrusions. In this context let us now analyse the real situation. What is the position of women inside her home, particularly those belonging to the weaker and marginalized sections? Is her home a place of peace and sanctity or a place of oppression, violence, and abuse? Does she enjoy equal rights as that of her husband? Can she exercise her “right to be let alone”?
We all know that all these are far from true. Women in their homes are not independent and free. They have no right to privacy. Thus despite being a fundamental right, women are deprived of this right.
Under Article 375 of IPC, sexual intercourse by the husband with her wife, who is above 15 years of age is not rape. This is nothing but legitimization of marital rape in a country where the majority of rapes are committed against the wife.
To make things worse, home is a private place, actions taken within its four walls should be free from state interference, as the right to privacy is a fundamental right. It is thus likely that oppression, violence, and abuse can get more unreported in the name of the right to privacy.
Thus, a judgement declaring privacy as a fundamental right is just the beginning of the journey. The country needs to analyse the issue in greater detail. Greater affirmative action, protecting the rights of women, is needed to be introduced in right earnest, so that the right to privacy applies to all women of the country in letter and spirit. We need to initiate these steps that ensure positive discrimination for women. This is the order of the day.
Suggestions
The policymakers who are responsible for forming the laws on which the country operates, need to realise that privacy concerns regarding women can not be properly addressed until people acknowledge the ingrained social structures which stem from patriarchy. Women are considered the lesser of the two genders and that is why there is probably so little regard for their privacy and people don’t think twice before intervening in their lives. Proper laws in the form of affirmative actions need to be enacted which give special focus to women because there won’t be any equality unless everyone is on an equal footing. There should be sensitization of the law enforcing authorities so that they understand the vulnerability of women and act accordingly. There should be proper data protection regulators that provide greater security to all citizens. Suitable legislation should be brought so that social media platforms cannot be used as means for outraging the modesty of women and infringing their privacy.
Conclusion
The UN Human Rights Council and the UN General Assembly have expressed concern and appreciated that “violations and abuses of the right to privacy in the digital age may affect all individuals, with particular effects on women, as well as children, and persons in vulnerable situations, or marginalized groups”. They have urged upon the states to act towards prevention of violation of the right to privacy against all individuals, particularly women, children and the vulnerable sections of the society, and devise suitable remedies for addressing the issue.
In this digital era, when the invasion of privacy is very easy, we, therefore, need to realize that enactment of suitable privacy laws with a greater affirmative focus on women and other weaker sections of the society, and their rigorous implementation, is the order of the day.
References
- http://www.glcmumbai.com/lawreview/volume10/Priyanshi%20Vakharia.pdf
- https://www.firstpost.com/india/supreme-court-verdict-on-privacy-can-further-the-rights-of-women-sexual-minorities-in-india-3973875.html
- https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html
- https://indianexpress.com/article/india/right-to-privacy-how-it-is-protected-in-other-countries/
- http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html
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