Today's Editorial

13 September 2017

The privacy of thought


Source: By Mukul Kesavan: The Telegraph


One of the things a landmark judgment does is create a little tide of commentary and criticism that draws lay people into the discourse of the law and that arcane art, judicial reasoning. When the nine judge bench that considered Puttaswamy versus Union of India unanimously declared in its order that privacy was not just a fundamental right but that it was also inseparably connected to all the individual freedoms that the Constitution guaranteed; it created one of those landmark moments.

The judgment was hailed as such a resounding victory for what Gautam Bhatia has described as "progressive civil liberties jurisprudence" that battered liberals emerged from their defensive crouches and looked over the parapet to squint at this unexpected dawn. For the uninitiated, reading judgments isn't easy. They are long, florid and sometimes eccentrically written. They tend to rehearse lawyers' arguments in numbing detail before getting down to the actual reasoning behind the judgment. Sometimes there isn't a majority judgment to hold on to, but a series of concurring and dissenting judgments.

You begin to long for a readymade precis that harmonizes the overlapping judgments into a concise statement. But sometimes in cases like Puttaswamy, judges rise to the occasion and produce judgments that are individually lucid and collectively coherent. Even so, when I first read that the Puttaswamy made it very likely that the Supreme Court's 2013 verdict upholding Section 377, the colonial law that criminalized homosexual intercourse, would be struck down, it wasn't immediately clear to me how this was implied by the fundamental right to privacy.

If privacy in its commonsense meaning suggested an intimate personal space cordoned off from the public world, and the right to privacy meant the right to do what you wanted in this private space without the interference of either the State or outsiders, I could see that this right created a safe harbour for homosexual relationships. But it also seemed to circumscribe samesex relationships by consigning them to the bedroom. Why did the freedom to express one's sexual identity have to be premised on privacy and the discretion and invisibility that it implied?

My unease was partly down to ignorance — I hadn't then read the judgment and knew nothing about judicial definitions of the right to privacy — and partly on account of the way in which homophobic conservatives had responded to both the Koushal vs Naz Foundation judgment and the present one. After the 2013 verdict re- criminalizing ' unnatural' sex, one right- wing commentator anxious to demonstrate his personal tolerance for homosexuality, wrote that he had nothing against homosexuals doing whatever it was they did in the privacy of their homes.

The judges who wrote the verdict had themselves argued that there was no compelling need to change the law since less than 200 prosecutions had been brought under it in the hundred years and more that it had been in existence. The pundit and the judges both seemed to suggest that a twilight zone made up in equal parts of furtiveness and concealment was the proper venue for sex ' against the order of nature'. After the Puttaswamy verdict, one of the Bharatiya Janata Party's licensed provocateurs declared that he wasn't concerned about what homosexuals did in private so long as they didn't inflict their sexual preferences on others in public.

Even if this stunted notion of privacy was given legal status, surely the right to it would be no more than the right to be tolerated? And how did the right to privacy address the 2013 verdict's claim that since Section 377 was not discriminatory ( allegedly because it outlawed anal sex even- handedly, regardless of gender), it was constitutional and couldn't be read down by a bench — it could only be changed by Parliament.

When I read D. Y. Chandrachud's judgment, it felt as if it were a bespoke tutorial designed to allay my anxieties. He argued that the reason for protecting privacy was the dignity of the individual, that "sexual orientation is an essential attribute of privacy". Privacy in this sense didn't mean a secluded, protected space, but a less literal sense of the word which suggested the autonomy of the individual and his right to use it to realize himself and protect his dignity.

"If the reason for protecting privacy is the dignity of the individual,"writes Chandrachud," the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home. Yet if dignity is the underlying feature, the basis of recognising the right to privacy is not denuded in public spaces." The 2013 argument that Section 377 didn't constitute discrimination was summarily dismissed because" the sexual orientation of each individual in society must be protected on an even platform" and the ban on 'unnatural' sex fell overwhelmingly on homosexuals.

The conservative argument that gay rights must wait upon legislation and the extraordinary claim that homosexuals being a 'miniscule minority' weren't entitled to the protections afforded by fundamental rights, were dismissed in one terse paragraph: " That ' a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders' (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.

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." Gautam Bhatia in a series of short essays on the judgment has stressed the emphasis that all the judges’ place on privacy as an individual right intended to protect a person's ability to make autonomous decisions. Unlike earlier constructions of privacy by the court, this one didn't seek to protect the family or the institution of marriage, only the individual.

It is this interpretation of the right to privacy that allows the bench to insist that sexual orientation is constitutive of individual identity and therefore must be protected. Precisely because it was heartening to come upon a judgment so supportive of liberal principles as Puttaswamy, it came as a shock to know that it was Chandrachud (along with the chief justice, J. S. Khehar) who had, in another case, asked the National Intelligence Agency to investigate the conversion and subsequent marriage of a woman in Kerala to a Muslim man.

The Kerala High Court had annulled this marriage on the ground that the girl didn't have her parents' permission. A judge as alive to the importance of individual autonomy as Chandrachud asked an organization established to investigate terrorism to examine the antecedents of a marriage between two consenting adults. This should teach us that Puttaswamy for all its virtues is an abstract and general statement of principle. It is in subsequent, specific, real world judgments that its promise will be fulfilled or belied.

Book A Free Counseling Session