The Supreme court on Tuesday granted interim protection to former BJP spokesperson Nupur Sharma. The court directed that no coercive steps be taken against her in the multiple FIRs registered in different states, over her remarks on Prophet Mohammed during a TV debate. The court also said that the same protection will be available for any FIRs registered in the future in respect to the same telecast. The top court essentially granted her the same protection which she was seeking earlier.Continue reading “Nupur Sharma gets relief from SC: Notes on clubbing on FIRs and TT Anthony Case”
Holding Sedition Law unconstitutional is not enough: Section 124A
A few months back, most of the national newspapers and twitter-feeds were filled with ‘positivity and praises of the Apex Court’ after the comments passed by the Hon’ble Supreme Court (CJI Ramana, Bopanna, and Roy JJ) in a hearing in which the colonial-era sedition law (section 124A of the Indian Penal Code) was under challenge. The bench of three judges expressed concerns about the ‘misuse’ and ‘lack of accountability of the executives’ under the law. The Court also questioned Attorney General KK Venugopal and asked him (as reported by the Indian Express), “It’s a colonial law. It was meant to suppress the freedom movement. The same law was used by the British to silence Mahatma Gandhi, Tilak, etc. Still, is it necessary after 75 years of independence?”Continue reading “Holding Sedition Law unconstitutional is not enough: Section 124A”
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]
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.
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.