Understanding the Right to Privacy: The Puttaswamy Judgment-I

In 2017, the 9 judges of the Indian Supreme Court adjudicated a matter Puttaswamy v. Union of India (‘Puttaswamy’) and unanimously held that under the Indian Constitution, the Right to Privacy is a fundamental right. The Supreme Court declared that its previous judgments in MP Sharma (8 judges) and Kharak Singh (6 judges) are overruled as they did not recognise privacy as a fundamental right. Those judgments relied on the logic used in the A.K. Gopalan case which stated that every fundamental right to be read separately and individually. But that position got changed in R.C. Cooper v. Union of India, and subsequently in Maneka Gandhi v. Union of India, in which the Court held that fundamental rights cannot be read in water-tight compartments. In Cooper, the Court said that the fundamental rights ‘do not attempt to enunciate distinct rights’, rather they are interlinked. Hence, this article must be read in light of the principle enunciated in the Cooper case. In this article, I will try to highlight the reasoning behind Puttaswamy as to why the Court declared Right to Privacy as a fundamental right.

Understanding Right to Life and Dignity

Every human being by the virtue of her existence has a Right to Life which is a natural right guaranteed by the ‘Nature’. Further, this natural right to life is also guaranteed by the Indian Constitution under Article 21 which elucidates that the ‘state’ shall not violate any person’s right to life and personal liberty without the procedure established by law. The Right to life is not just the right of a person’s physical body, but also over her mental being. In Golaknath case, Justice Rao observed that ‘Fundamental Rights are the modern name for what has been traditionally known as Natural Rights’ [The usage of the word ‘natural’ here is opposed to the societal opinion/understanding of the rights ‘as they are since time immemorial’, rather it is based on the transformative nature of rights which are always evolving]. These rights, including the right to life, cannot be excluded or separated from human existence. Hence, the rights guaranteed under Part III of the Constitution are the natural rights of every human being, which it aims to preserve.

Dignity, as an expression, finds its place in the Preamble of the Constitution as it states that ‘ensuring the dignity of every individual’. An individual is the focal point of the Constitution and human dignity weaves through the provisions of the Constitution. [Article 14: Guarantee against arbitrariness; Article 19: Individual Freedoms; Article 21: Life and personal liberty] The Court in the Francis Mullin case strongly observed that the fundamental rights must be interpreted to enhance the human dignity and ‘worth of the human person’. The Right to Life is not just animal existence and it is much more than just mere survival. On human dignity, the five-judges bench in M. Nagraj exposits that, “no exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. Every human being has dignity by virtue of his existence.” Further, observing about dignity, it has been observed in Selvi’s Case that forcible intrusion into a person’s mental processes is also a violation of Human Dignity.

Privacy and Human Dignity

Ancient philosophers such as Aristotle distinguishes private life from public life. He distinguishes the spheres where the government can intervene and where it cannot; certainly as he observes that government cannot intervene in an individual’s privacy.  Individual’s private life is mainly for “private reflection, familial relations and self-determination” (refer to the constitutional database to read the hyperlinked article). The individual is sovereign over her mind and body. As Justice Chandrachud posits (Puttaswamy ¶32),

“If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena.”

An individual has all the freedom and liberty over his body and mind and she must be set free from any kind of intrusion. Privacy, as a right, is important for an individual to exercise control over his or her personality. ‘Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.’ (Puttaswamy ¶113) Life without dignity, privacy and liberty is no life as they are inalienable to a human being. No state can violate these rights as they exist even before the advent of the Constitution. The constitution is ‘not the sole repository of the right to life.’ India has signed and ratified UDHR and its Article 12 recognises the Right to Privacy which cannot be taken away by anyone.

 Further, the argument that the right to privacy is not available under the text of the Constitution is based on a primitive understanding of it. The Constitution is a transformative text which evolves over time and it cannot be viewed as a document ‘written in ink to replace one legal regime with another’. It is a document which rests on the goals enshrined in the Preamble and the aim is to realise those goals. The Constitution does not tells us what is a right or do we have a right or not? It only puts the limitations on the power of the state. It is not the source of liberty of man as liberty exists by the mere virtue of existence in the world.

Therefore, the right to privacy is a part of the liberty of an individual and privacy protects the individual’s autonomy and dignity. The ‘pursuit of happiness’ which everyone seeks is founded upon liberty and dignity of an individual. ‘Both are essential attributes of privacy which makes no distinction between the birthmarks of an individual.’ The guarantee of the right to privacy liberates the individual and helps her in realising her potential and autonomy.

In conclusion, while embracing the Supreme Court’s judgment in Puttaswamy v. Union of India, a paragraph from Max Planck Encyclopaedia of Comparative Constitutional Law (2015) is something to look forward to:

“The right to privacy can be both negatively and positively defined. The negative right to privacy entails the individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion and political affiliation, i.e., the inner core of a person’s private life….. The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities.”

[Note: There are certain reservations about the Court’s judgment with regard to ‘declaring Privacy as a Natural Right and not merely a Fundamental Right’. This has been argued here and here]

Protection of Animal rights under the Indian Constitution

[This is a post by Suvechha Sarkar, Contributing Member]

The whole world is under great threat as a result of the drastic climate change that has been happening for the last three decades. The global warming and the extinction of many animal and plant species have been something which could not be overlooked due to the adverse condition which we are facing in our day to day lives. The most threatened part of nature is that of the trees and animals. In the 21st century,  animal managers have been facing greater and bigger problems as compared to ever. They constantly have to keep up with their inventive and innovative sides.

In India, in the past 10 years, there has been a gradual rise in the number of cruelties against animals. It must be stated as the shame of humanity, especially in India where animals are being worshipped. There are provisions in the Indian Constitution, in the Indian Penal Code which lays down laws against the brutalities against animals but the question remains how strict the laws are.

Laws in India regarding the Rights and Welfare of animals

The Indian Constitution lays down some of the Animal Rights under the Fundamental Rights, Fundamental Duties and the Directive Principles of State Policy. Apart from these the rest of the laws and punishments concerning animal rights are listed in Section 428 and 429 of the Indian Penal Code, Criminal Procedure Code, 1974, the Wildlife Protection Act, 1972, The Prevention of Cruelty to Animals Act, 1960.

SECTION 428 OF INDIAN PENAL CODE, 1860

The following act states that if someone causes any harm or mischief by killing or injuring any animal, by any means the value of which is ten rupees or more than that is entitled to maximum 2 years of imprisonment and may be entitled with fine or maybe with both.

SECTION 429 OF THE INDIAN PENAL CODE, 1872

Whoever causes any mischief by killing or injuring any elephant, camel, horse, mule, buffalo, ox, cow or bull or any other animal by any means, the value of which may be fifty rupees or more, the person will be entitled with a punishment of imprisonment for a maximum of 5 years or with fine or maybe both.

SECTION 154 OF CRIMINAL PROCEDURE CODE, 1973

A person can file for an FIR against the cruelties towards animals or protect the animal rights, in the nearest or local police station under Section 154 of the Criminal Procedure Code, 1973. The person under fault will be punished accordingly considering the offence he committed falls under the cognizable or non-cognizable offence.

THE WILDLIFE PROTECTION ACT, 1972

Under this following act, injuries to both the trees and the wild animals are being prohibited (under Section 39). In the list of wild animals, it consists of all animals including the mammals, birds and the reptiles. For the case of reptiles and the birds, even their eggs fall under the protection of this Act. The punishment for the first offence under this act is imprisonment for three years or maybe a fine of twenty-five thousand rupees or maybe both. For the second offence under this following act, the imprisonment is for a term of seven years with a fine amount of ten thousand rupees.

THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960

Under this following Act, the law states protect the animals from the cruelties like slaughtering, transportation, cruelty against a pet or not providing an animal with the needed living condition etc. The punishment for the first offence under this act is a fine of a maximum of fifty rupees and in the case of a second offence, the person can be punished with maximum three-month imprisonment or fine of minimum twenty-five rupees and a maximum of hundred rupees. In some cases, it can lead to both at the same time.

Animal rights and the Indian Constitution

Fundamental Rights

The fundamental rights stated in the Constitution of India (Part III) lays down the rights of every citizen of India irrespective of the caste, creed, colour, race, place or religion. The main question which can be raised is what rights do the animals have when it is not only the people who are living in this country. The only fundamental right which can be used for fighting towards the rights of animals is that of Article 21 which is the Right to Life. Article 21 states “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

In the case of Animal Welfare Board of India v. A. Nagaraja & Ors., the Supreme Court had introduced some of the animal rights under the following article thus expanding its scope on a large scale. The case was filed against the game of Jallikattu which involved the use of bulls. Across the years, the game had led to the death of many humans along with the concerns for the welfare of these bulls as during the ongoing of the game, they were injured with sticks, knives in order to win. It was in this case, the Supreme Court passed the order in favour of the Animal Welfare Board of India. As a result, the game was banned. The court stated that “Article 51 A (g) of the Constitution is the “Magna Carta of animal rights” and made several observations to safeguard the “life” of animals under Article 21.

Directive Principles of State Policy

The directive principles are enshrined in Part IV of the Indian Constitution. It consists of fifteen principles which are in no way enforceable in the court of law and in a way helps the states to formulate its laws and policies. Article 48 and Article 48A of the Indian Constitution lays down the principles concerning the welfare of the animals and their rights. The following article talks about the problems regarding the cow slaughter. India is a country where cows are worshipped by people of many religions and considered sacred on a separate level. It states that the farmers or the farms should take enough care of the farm animals especially the cattle. It is stated that the farms should put the effort into making the breed better.

This particular provision prohibiting the slaughter of cows had been a matter of hot debate among the Constituent Assembly members. It was argued if it could be added under the list of the fundamental rights or not but ultimately it was decided to be added to the directive principles since it was in contradiction with the Article 9 of the Indian Constitution which stated the Right to Religion. In the case of Mohd. Hanif Qureshi v. State of Bihar (1959), the court dealt with the same problem. The judgement went in the favor of Article 9 observing that the banning of cow slaughter was next to impossible keeping in mind the diverse religious practices of the Indian citizen.

Fundamental Duties

The fundamental duties pertaining to the protection of animal rights are found in Article 51A, part IV of the Indian Constitution. Just like the directive principles of the State Policy, the fundamental duties are unenforceable in the Court of Law. Only two of the clauses in Article 51A of the Constitution consists of laws which are in concern of animal welfare. It is stated as follows:

“(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform.”

Conclusion

There has been an increase in the reports of cases concerning animal abuse and cruelties. As the year 2020 is passing by inside the four walls of our rooms, it is becoming more evident how the caged animals might feel. From cases of poaching to trapping them cruelly in iron traps or ropes, thus injuring them, to the cases of beating the stray dogs or poisoning them, beating them to death, the existence of humanity is constantly being questioned. It is not only the duty of Law to protect the animals. It also depends on us who are sharing the planet with them.

At the present situation, millions of rabbits, mice and various other animals are being used for various scientific experiments. They tend to develop various problems which are not only associated with their physique but also their mind. We need to understand that it’s not only the humans who are affected under the cu=ircumstances of loneliness but also them. The experiments usually involve usage of various drugs over them or even cutting them open in various instances. Many organizations have already been protesting against it but the use of certain animals for experimentation is still legal in all countries. The law should be reformed so that this cruel practice can be stopped because at the end all lives matter, be it humans or animals. 

The Indian Laws are constantly developed for the protection of the animals and their welfare but unlike some other countries, the animal laws in our country are far less rigid and as a result, many people are getting away with their act of cruelty. More amendments should be brought in the Constitution of India listing Articles in the context of animal protection and rights. It is indeed a crucial moment for us to prove that humanity still exists among us and has not faded away.

“Publishing of notice of Intended Marriage”: A Privacy loophole under Special Marriage Act

[This is a post by Shreya Singh, Contributing Member.]

Marriage is considered as a sacred institution in India which is governed by codified personal laws. The Supreme Court of India has recently accepted a petition challenging the constitutionality of Section 6 under the Special Marriage Act, 1954 contending that the provision violates the Right to privacy, equality and non-discrimination vested in the Constitution of India. The Special Marriage Act, 1954 is distinct from other personal laws as it provides rules and regulations regarding marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.

The Apex court has agreed to examine the provisions which obligate the Marriage Officer to publish a notice of an intended marriage allowing people to come forward and object the intended marriage within 30 days of the date of publication of the notice. The details include their names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number, etc. which is a particular requirement of the Act. It also mentions that anyone can raise an objection to the marriage, and gives significant power to the marriage officer to investigate them as well.

The provision invades privacy and violates fundamental rights 

The right to privacy was recognised by the Supreme Court in the nine-judge bench landmark judgement in the case of K.S. Puttaswamy v. Union of India (2017). The Supreme court declared that right to privacy is a fundamental right and is an intrinsic part of the right to life and liberty under Article 21 of the Constitution of India, contending that it is the responsibility of the sovereign State/Nation to protect the privacy of an individual. Therefore, the State must not intervene in the personal lives of the people and the choices made by them which includes a person’s decision of whom he/she should marry. On the contrary, the said provisions of the Special marriage act, 1954 obligates the marriage officer to put personal details of the couple in the public domain for other people to decide whether the potential solemnisation of marriage is acceptable or not. 

The notice of marriage not only invades the private lives and liberty of the individuals but also jeopardizes the marriage as it may endanger the life or limb of the couple due to parental interference. In the case of Lata Singh v State of UP (2006), a two-judge bench of the apex court, in the landmark judgement stated as follows:

“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence.”

In the case of Shakti Vahini v. Union of India(2018), the Supreme court held that the right to choose a life partner is a fundamental right under Article 21 and does not require the consent of anyone else other than the two legally competent persons (adults) for the solemnisation of marriage. The disclosure of marriage between inter-faith/inter-caste couples can invite religious conflicts amongst both the communities and may lead to physical violence and honour killings. A prominent example of such violence is the Khaap Panchayat in western Uttar Pradesh, Haryana and Delhi and the honour killings practised by them. The publishing of intended marriage mentioned in the Special Marriage Act may attract such communal conflicts and unfortunate blood-shed which will only create hatred amongst religious communities. 

It is observed that there is an inconsistency in the personal laws for the solemnisation of marriage under the Hindu Marriage Act,1955, does not demand a notice of intended marriage to be published which is contrary to the Special Marriage Act, 1954. This clearly proves the arbitrary nature of the laws and its failure in satisfying reasonable classification under Article 14 of the Constitution. The provision also violates Article 15 of the constitution of India as it promotes inequality in the society and discriminates people on grounds of religion, race, sex, caste and place of birth. 

Uniform Civil Code: Need of the hour 

The conflicting provisions in the personal laws have been a prominent issue in India. The conflicting requirements of multiple laws create unnecessary confusion in the judiciary and give rise to the arbitrary nature of judgements. The establishment of a Uniform Civil Code can bring relief to conflicts regarding the inconsistency of personal laws as it will apply equally to all the citizens of India regardless of their religion. It would help in bringing about a positive change in society by preventing communal violence and maintaining peace and harmony. 

Conclusion 

In India, marriage is hardly considered as a private affair between two consenting adults. It is believed in India that – “Marriage isn’t a union of two people; but the union of two communities/families”. Marriage is still a victim of patriarchy as it is driven by the notion that choosing a desired partner against the standards that have been set by society is unacceptable. The romanticisation of marriage being a topic of communal-union must not penetrate and affect the private lives and the choices made by individuals. 

There have been progressive decisions made by the state of Kerala regarding this issue as they have recently issued a circular to bring a halt to the publication of notice of marriage and this has been supported by high courts of Delhi and Rajasthan as well. The Supreme court must consider these progressive examples to make a rational decision and help in bringing about a significant change in Indian society. 

EIA Draft 2020 and Constitutional Concerns

[This is a post by Minnah AbrahamContributing Editor]

Introduction

Noting the several holes piercing right through EIA draft 2020, several concerns were immediately raised, questioning India’s obligations towards the larger interest of the general public, with its disturbing clauses, especially the removal of public consultations and the insertion of ‘post-facto clearance’. Not to mention that the draft was made to be available only in English and Hindi initially, which goes against the very principles of democracy, pertaining to the duty enshrined to the government to take the draft law to its people. This, however, is another concern, where a serious amendment is necessary in the Official Language Act for the government to issue draft laws and notices in regional languages. 

Coming back to the EIA Draft 2020, this draft law weakens India’s position toward environmental protection and upholding the Constitutional Article 48A, forsaking the duty of the State to protect, improve and safeguard the forests and wildlife of the country.

EIA Draft 2020

The Environment Impact Assessment 2020 is condemned as supportive of ventures on the grounds that the draft permits post-facto clearance meaning the concerned authorities can affirm an undertaking with no adequate formalities. This further implies the onus of acceptance of infringement lies on the polluter and the polluter can look for clearance after it has started work and has just caused ecological damages. There are just about 40 distinct undertakings that are barred from the natural leeway and public discussion in this way shouldn’t be affirmed dependent on the assurance and climate wellbeing rules. The exception is material to: 

  • Those tasks that are sorted as key by the legislature. 
  • Citizens cannot approach data identified with these undertakings. 
  • Public Highway ventures and inland water squander ventures. 
  • Projects up to one lakh 50,000 square meters. 

The projects that are recorded under the B2 classification require scarcely the two-stage cycle to conclude whether to allow or dismiss the proposition. 

As indicated by the draft, just government authorities, delegates, and project defenders are permitted to report the infringement. This clause has removed the privilege of individuals to report an infringement, which in the past has caused significantly to prevent enterprises and specialists from going excessively far inconsistency with misuse.

Ex-post facto clearance is not a new term, as it has been an evading practice often manipulated to entertain illegal or corrupted activities. While the current law states that projects to obtain environmental clearance prior to any commencement of the activity, this new insertion of ‘Ex-post facto clearance’ provides an exception that violates the requirement of mandatory clearance. 

Detailing on ‘ease of doing business’ and Constitutional duties

The whole point of the EIA draft 2020 is the way out on how not to do an environmental impact assessment. The emphasis is on getting environmental clearance and assent. India is under a global commitment to conduct EIA(s). It is a scientific, legitimate, and social apparatus to evaluate the conceivable ecological results of proposed projects. The draft EIA warning has three fundamental destinations: firstly, to guarantee that most environmentally damaging consequences do not need an EIA; secondly, make wide special exceptional cases for EIAs, for example, higher thresholds; thirdly, guarantee that those (ventures) that require EIAs are not examined by either people in general or concerned authorities. There is no proof that every one of these provisions will help accomplish the financial position. The straightforward explanation is that significantly under the current EIA 2006 system, no project is ever dismissed. The ministry of environment’s history is 100% approved for all activities. 

The rundown of businesses permitted to start ventures without EIA clearance incorporates probably the most perilous and high effect enterprises, for example, creation of synthetics and acids, concrete plants, oil exploration, stream valley projects and mining, among others. It additionally expresses that huge solar-based parks, safeguard ventures and mechanical domains do not need to go through any EIA procedural cycle under the pretext of ‘national interest’.

The proposed draft additionally expresses that red classified projects, high limit high impact projects would now be able to begin inside 5 km of secured territories and environmentally delicate regions, which was prior confined to a 10km radius area. 

Common Society participation and citizen engagement in Environment Impact Assessment measure have been considered incredibly pivotal in environmental administration and democratic government. Nevertheless, the basic apparatus of public discussion has been pulled back from practically all categories of polluting and high impact undertaking projects. Aside from taking them off the pre-project consultation procedure, they have additionally been denied any part in taking the perception of any violation or raising a voice against a pollution-risky and violating industry.

The draft additionally expresses that in the event of specific undertakings that actually have public consultation norms applicable, just material ecological concerns can be shared, no other connected social effect or long-term wellbeing concerns. The SC decided in Rural Litigation & Entitlement vs. State of U.P that Article 21 of the Constitution states that no individual will be denied of his life or personal liberty in a 1983 stoppage of limestone mining in Doon Valley. Necessitates that when commercial activities obliterate environments and ecological processes on which life depends, commerce must stop, on the grounds that the coherence of life through the protection of the fundamental cycles of nature is a constitutional commitment. It is additionally a moral and civilisational commitment. 

Concluding remarks

Although the EIA draft 2020 was brought forth with keeping in mind ‘conditions and threshold on the undertaking of some project or expansion or modernization of such existing project’, it has clearly stated the draft imposes restrictions and limitation upon the common public and making way easier for commercial giants and industries to carry forth the projects without having to screen through regulatory and adequate procedures. 

This ‘anti-ecological’ law is backward and against the inherent constitutional right to information. In a nation where debasement and infringement of law are common, the draft is by all accounts changed and recharged to serve the personal stakes of elites by preventing the truth from getting environmental change. 

The EIA 2006 thought about assessments of individuals through open discussion before the last endorsement of an undertaking. Not exclusively did the new draft eliminate the privilege of public counsel on specific exercises yet additionally abbreviate the 30 days’ notice period for hearing and handling reactions to 20 days. 

The legislature has created a false fantasy that environmental laws are an obstacle to economic development, and the vast majority, including the courts, cheerfully have confidence in this so-called myth. More or less, the EIA Draft 2020 is not only mistaken at certain levels, yet in reality, it consists of a summary of all potential infringement one could envision vis-á-vis environmental administration in the nation. The simplicity of working together cannot just rule over worries of public wellbeing and environmental concerns.

The EIA draft 2020, once executed, would prompt a generous increment in deforestation, illegal mining, and development exercises in earth weak territories and left with no opportunity for individuals or activists to report the infringement. In fact, these are the occasions wherein governments ought to increase the environmental-conscious rules and guidelines for a safer, better tomorrow.

Marital Rape in India: The Public/Private Dichotomy

[This is a post by Panya Mathur, Contributing Member]

[Editorial Note: Constitutional Renaissance Blog would like to thank Ms Bansari Kamdar for having an insightful discussion on ‘Marital Rape Laws’ in India. Reach out to Ms Kamdar here.]

In India, there exists a complex conundrum in relation to the vast number of issues surrounding the criminalisation of marital rape. There has been a great measure of sanctity involved with marriage. Marriage is seen as a sacrament, a union of two souls, who will remain in complete exclusivity to one another for all purposes in their lifetime. This can be proved by the existence of personal laws in the country. For instance, the institution of marriage in the Hindu community occupies a prime role in the social construct of a Hindu. The concept of consent in the sexual relationship in a marriage is dicey and difficult to navigate. A marriage rests on the concepts of a moral cement that produces ‘two-in-one-ship’. 

The exception to Section 375 of the Indian Penal Code, 1860 (for brevity IPC) states as follows:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
And the Section 376B of the Indian Penal Code reads as follows:

“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.” 

The notion of the Marital Rape exception can be traced as far back as 1736 when Sir Matthew Hales declared that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which cannot retract.’  

The horrors of Harvender Kaur

In the case of Harvender Kaur v. Harmender Singh Choudhary, the Court did not hesitate to opine that “the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop and that neither Article 21 nor Article 14 had any place in the privacy of the home. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond”. In the case of Smt. Saroja Rani vs. Sudarshan Kumar Chadha, the bench judge explicitly agrees to the judgement given in the Harvinder Kaur Case, hoisting the requirement of the existence of a private sphere wherein the law does not seek a stance, in order to preserve the moral fabric and sanctity of the society. 

However, what has been conveniently ignored by the Hon’ble Court is that in both conditions of rape and marital rape the primary definition of rape remains a constant that is sexual penetration or intercourse wherein there exists a lack of consent. Therefore, to prove that the crime of rape has occurred, it is essential to prove the absence of unequivocal consent. Moreover, the burden to prove this absence of consent usually rests on the victim; however, in certain cases such as that in the case of minors, it is presumed that consent does not exist due to the presumption created in law that such minors are incapable of providing consent to any sexual acts. Similarly, in the case where the victim and perpetrator are in a marital relationship, there is a presumption of consent on the part of the wife even when such equivocal consent required by Section 375 is not present. The same can be proved by the mere existence of the exception to Section 375 of I P C.  Moreover, the State has selectively penetrated into this marital sphere by enacting legislation that deals with the violence of women in matrimonial homes. PWDVA, 2005 and Section 498A of the IPC provides a remedy for women who are victims of forms of abuse in the marital sphere. Hence, to empower women and protect them from violence in a domestic relationship, the State should rightfully criminalize marital rape break down the public/private dichotomy. The Supreme Court in the case of Independent Thought v. Union of India, partly struck down a part of the exception clause in section 375 citing it to be in violation of the Protection of Children from Sexual Offences Act, 2012 and in violation of a child’s fundamental rights. The court notes that marriage cannot be the sole reason for any reasonable differentiation for girls between the ages of 15-18 years. In doing so the court explicitly made note of the fact that marriage cannot be reasonable classification. Even though the court keenly observed that the judgment did not speak of adult marital rape it is important to note that the court held a woman’s right cannot be subservient to her personal rights simply on basis of marriage.

In the case of State of Tamil Nadu vs. K. Shyam Sundar, the Court has held that whenever there is express arbitrariness that exists in law or State action, irrespective of whether it was legislative or not, Article 14 immediately springs into action, and the said action is struck down. Moreover, the term ‘arbitrary’ means an act that has been done in a manner that is unreasonable, and has been done at pleasure and has been done in a capricious manner without any determining principle, not founded on the nature of things, is non-rational and does not have a standard functioning principle. In order to find out that an act is arbitrary, there must be proof of ‘substantive unreasonableness’ and in the said circumstance, the test of reasonable differentia has not been complied with, because the purpose of criminal laws prohibiting rape or indeed any kind of physical violence or unwanted touching is to maintain a person’s bodily integrity. 

Conclusion

However, it must be noted that there are numerous other legislations that protect the rights of married women which have been provided by the Legislature. One cannot look at the exception to rape in isolation, and state that the rights of married women have been deprived. The overall position is that the husband can still be liable for domestic violence or cruelty under the IPC and other specific legislation. Spousal rape should be viewed as an abuse of the marriage relationship, with some protection being deemed necessary for the abused spouse. The State provides protection for the same under the Protection of Women from Domestic Violence Act, 2005 as well as the Section 498A of Indian Penal Code. Moreover, the marital sphere does not rest on the pillars of contracts sealed with permanent terms and conditions that must be maintained to continue the relationship. Neither does the concept of marriage exist on the tenets of Constitutional Law to enforce inalienable rights into a relationship of such sanctity. Thus, it can be concluded that there exists a lack of protection that exists when it comes to the rights of married women in the country. And this lacunae in the law should either be resolved by removing the exception 2 of Section 375 of the Indian Penal Code, that excludes married women from the purview of its protection, or by extending the purview of Section 498A and other such laws. 

Social Media and Right to Privacy

[This is a post by Raksha Tripathy, Columnist]

People like to express themselves, and are curious about other people.” -John Cassidy

Introduction

Justice Louis Brandeis of the United States Supreme Court gave one of the earliest meanings of privacy as an individual’s right to be left alone.” The Black Law Dictionary defines ‘Right to Privacy’ as, “The right to be left alone without intrusion or interference by the government into personal affairs.” 

Article 12 of the Universal Declaration of Human Rights (UDHR), 1948 enunciated privacy right as,

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

India is a signatory to UDHR which mandates our country to take steps in enacting laws to grant this right to privacy and ensure the protection of its citizens.  

The social networking sites (SNS) have become an essential part of our lives which is evident by the number of users who are a part of it. It has provided a platform to enhance skills, knowledge and is creating tools for one’s interest. The freedom to post personal information without rational judgement has paved the way for online predators to access the information maliciously. Along with such freedom brings privacy concerns.

Right to Privacy as a Fundamental Right

The question of privacy as a right was presented before the Court in MP Sharma v Satish Chandra back in 1954 where the power of search and seizure was held not to be one’s privacy violation, and the bench held that Right to Privacy is not a fundamental right. In the case of Kharak Singh, the validity of Right to Privacy as a fundamental right was raised which was dismissed by the majority of judges saying, “Our Constitution does not in terms confer any like constitutional guarantee.” However, one of the judges, Justice Subba Rao in his dissenting opinion said that,

“…Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life…”

The Right to Privacy was a debatable topic in India. However, it was in K.S Puttaswamy v Union of India where it was considered as a fundamental right under Article 21 of the Indian Constitution as an integral part of “personal liberty” enshrined under Part III of the Constitution. In 2017, the nine-judge bench of the Supreme Court gave this landmark judgment despite strong encountering arguments which stated that only a minuscule portion of the population is affected by the right to privacy; and it is an elitist construct. The opposition also contended that ‘Right to Privacy’ is a common law right but not a fundamental right and constitutional debates rejected privacy as a fundamental right.

Social Media and Privacy Breach

An SNS profile acts like an individual’s online personality or digital personality. It can create and bring content similar to a person’s interest and personal life. It also displays recommendation of events, contents, discussions based on the personal information which is quite vulnerable to a privacy breach. The Facebook data leak which affected 50 million users in which information like phone numbers, emails, and other details was compromised. These stolen data can be used as phishing mails to know an individual’s preferences, text messages or calls can be used maliciously along with other information. India was recorded as the second most affected country due to cyber-attacks which made Indian companies at a high risk of cyber-attacks to opt for cyber insurance policies. 

The data leak of February 2019, where Aadhar details of over 6.7 million users containing sensitive data like addresses, numbers, etc were leaked on Indane’s website. The JustDial data breach affected 100 million users, and the personal information of these users was uploaded on unprotected servers which included names, numbers and addresses. It did not only affect those using the JustDial app but even those who called the helpline of the company between 2015-2019. Another data leak of Facebook and Twitter users in November 2019 where emails ID, username and tweets were leaked by malicious apps and was confirmed by India’s cybersecurity watchdog, CERT-In. 

Indians are at a higher risk of a data breach as they comprise of more active users on social media platforms and tend to give away personal information easily as compared to other users in the markets. The careless approach, lax rules and regulations for app developers have added more to the violation of this right. “App permissions and the way app developers and owners seek permissions from users before the latter download apps vary with locations,” said Sivarama Krishnan, cybersecurity leader, India, at PwC. 

“Privacy regulations in Europe, Singapore and other markets compel app owners to seek explicit and more specific approvals from users who can be more discerning while in India they take a blanket approval. Because of this, the risks could be higher in India,” he said.
The Cambridge Analytica data breach controversy questions about how much data does Facebook and other social media platforms have because, unlike other countries where companies like Cambridge Analytica need a proper framework of collecting data. There is no such thing in India where over 90% of messages, photographs, and other updates are in the public domain making the users of India an easy target of data and privacy breach. The permission of expressly giving the contacts on the phone and other related information of the user is something we need to look into. 

In a Special Leave Petition 804/2017, where two students challenged WhatsApp’s new privacy policy famously known as, “Whatsapp Case. It happened post-WhatsApp was acquired by Facebook in February 2014. The students claimed Whatsapp divulges data of the users to Facebook, which violates Right to Privacy. Following the Cambridge Analytica fiasco, the CEO of Facebook Mark Zuckerberg back in April 2018 admitted that the company had not done enough to protect the privacy of 2.2 billion users’ data and is committed to safeguarding users’ data. However, data leaks continued in the following years, which was not just limited to Facebook, but other social media platforms such as Twitter. 

The huge controversy broke out when the Government introduced the Aadhar Scheme in which biometric and demographic data of the cardholders were collected and compiled for benefits like the Public Distribution System, Jan Dhan, etc. and later made Aadhaar cards mandatory for the public and private purposes. The Court dismissed this case on the grounds that minimal data was collected in the enrolment process. However, such data collection is at risk of leak and malicious use as the technological advancement in the country is not up to a certain mark where it can protect the data so compiled from hackers and others. This can be easily observed in the SBI data leak, the largest bank of India which had secured information of millions of its customers on an unprotected server without a password which compromised information like bank balances, recent transactions, etc. of the customers.

Conclusion

The Information Technology Act, 2000 has provisions such as Section 43, 66, 66F and 67, which protect user’s privacy. However, the absence of a data protection law to seek legal protection of such breach makes the matter worse in a country like India, which has the highest number of Android users in the global markets. If a data breach happens in India, it indeed amounts to the violation of Right to privacy enshrined in Article 21 of the Indian Constitution. The Indian users of such social media platforms do not have any legal recourse in case of data and privacy breach, whereas in other markets, such companies are susceptible to fines. Since it is an enormous liability of companies to afford fines which can go up to their annual turnover, and they take the security of such users in other markets more seriously than in India. The citizens themselves consider privacy as an elitist concept and pay the least attention to it.

We have a long way to go in terms of holding this right as a supreme right like other fundamental rights. The K.S Puttaswamy v Union of India has already left a footprint in other judgments such as the constitutionality of the Aadhar scheme and will be seen in future for the creation of data protection and prevention of data breach laws.